The importance of ‘learning’ lead to the ‘Fair Use’ clause of the Copyright Act limiting the copyright monopoly even during its limited duration.  In the simplest terms, this means: nonprofit copying is fair use. This provision allows public libraries, educational institutions and individuals to copy works without paying royalties to Proprietors and still avoid the charge of ‘copyright infringement’.

By contrast in Canada (following the British tradition), the corresponding provision is ‘fair dealing’.  In the simplest terms, this means copying a work, without payment of royalties to its Proprietor, constitutes an infringement except under extremely tightly defined conditions. For example, under current provisions of the Canadian Copyright Act, a public or educational library is required to assure itself that a patron is engaged in bona fide 'research and private study' before making photocopies available to him or her and to thereby obtain a 'fair dealing' exception to copyright infringement.  Similarly, under the Canadian Act the only way a teacher can copy a work for classroom use without infringing copyright is to hand copy on an erasable surface.  With passage of the Millennium Digital Copyright Act by the US Congress, however, it appears that the 'fair dealing' concept is beginning to slip into American copyright law.

Furthermore, unlike the title to the Statute of Queen Anne and Article 1, Section 8 of the US Constitution, the American Copyright Act of 1790 explicitly recognizes that copyright may be held by ‘Proprietors’, not just ‘Authors’. It is by this device that ‘moral rights’ of a Creator have been effectively extinguished by the American courts.  It is also by this device that the media empires of the 20^th and 21^st centuries, worthy successors to the Stationer’s Company, have arisen.

With respect to ‘knowledge’, President George Washington said in his message to Congress leading to enactment of the 1790 Copyright Act: "Knowledge is, in every country, the surest basis of public happiness." (Washington 1790). Thus long before the concept of a ‘knowledge-based economy’, knowledge was recognized by the Founding Fathers of the American Republic as intrinsically valuable to the public good. The Copyright Act was a device intended to minimize monopoly, foster learning and increase the knowledge of the people and thereby raise the level of happiness in America.  Such public happiness, however, is reduced to the extent that copyright usurps the public domain beyond its constitutional limits (Patterson 1993). 

This was the state of copyright law in the United States when the French Revolution was but a year old.

(viii) The French Revolution, 1789

The English Revolution resulted in the eventual restoration of the monarchy and constitutional accommodation between the Crown, the aristocracy and the people.  The American Revolution resulted in the end of the monarchy and removal of aristocratic privilege but also in constitutional accommodation with the Common Law, that is with the rule of precedent and traditional practice.  Development of the Common Law was a process whereby the courts of law converted customary bargains and business practices into a common law of property and liberty (Commons 1924: 229).  Copyright was one such business practice accommodated by the American Revolution, e.g. adoption of the wording and ‘market’ spirit of the Statute of Queen Anne and maintenance of ‘printer’s copyright’.

The French Revolution was different.  Essentially everything was swept away especially the law. Before the Revolution, Roman law governed in the south of France. In the northern provinces, including Paris, customary law based on feudal Frankish and Germanic institutions held sway.  Marriage and family life were controlled by the Roman Catholic Church and governed by canon law.  Furthermore, beginning in the 16th century, many issues were governed by royal decrees and ordinances and by a case law developed by the parlements..

The ‘rationalizing’ tendencies of the French Revolution went much further than that of the American. This was reinforced by Napoleon.  An example of his continuing ‘rationalizing’ influence on the daily life of each and every American is driving on the right-hand side of the road.

Perhaps most extraordinary of all was his insistence in the interest of speed that everybody keep to the right-hand side of the road in order to expedite and simplify traffic problems.  Where his armies went, right-hand driving has remained, even in Russia.  He never got to Sweden, and the Swedes didn’t switch until 1967.  He never got to England, and they still drive on the left-hand side (McLuhan, Fiore 1968: 106).

After the [French] Revolution, codification [of the law] became not only possible but … necessary.  Powerful control groups such as the manors and the guilds had been destroyed; the secular power of the church had been suppressed; and the provinces had been transformed into subdivisions of the new national state. The Napoleonic Code [1804], therefore, was founded on the premise that, for the first time in history, a purely rational law should be created, free from all past prejudices and deriving its content from "sublimated common sense"; its moral justification was to be found not in ancient custom or monarchical paternalism but in its conformity to the dictates of reason (Encyclopedia Britannica June 2000).

The Napoleonic or ‘Civil’ Code remains, in one form or another, the dominant legal system in the non-English-speaking world including Latin America, France, Germany, Japan and most of Asia. The rationalizing tendencies of the French Revolution also succeeded in resolving the schizophrenic character of copyright in the Anglo-American tradition – market regulation or Creator’s rights - by splitting rights into two distinct classes:

... The European edifice of author's rights rests on two pillars: the author's economic rights and moral rights.  Economic rights allow the author to assign or license to others the right to use the work... and are the principle means by which an author reaps profit from the work.  Moral rights grant the author continuing control over the work despite its exploitation... In this scheme of things, the author is front and centre stage; later exploiters and users of the work are secondary players and stand in the wings.

Anglo-American law takes a more pragmatic approach to copyright. Copyright is essentially a vehicle to propel works into the market: it is more an instrument of commerce than of culture.  It is geared more to the media entrepreneur than the author.  It is ready to grant copyrights not just to authors but to secondary users who add value to the work: record companies, broadcasters, movie studios, and even printers... Unfair competition rather than authors' rights seems to be the guiding force behind copyright.  Whether rights should be extended to a work is more a question of political pragmatism depending on the strength of a particular interest group ... In such a scheme, economic rights are emphasized: moral rights are unheard of, save insofar as particular complaints can be slotted into some common law theory or statute designed to prevent unfair competition. Unless an author has retained some moral rights by contract, the assignment or licensing of the work pro tanto terminates his or her involvement with it (Vaver 1987: 82-83).

The Civil Code recognizes rights broad enough to make Creators master of their self-expression, no matter how this expression may be subsequently used, for example, translation into another language, adaptation to the screen, etc.  It empowers the Creator by recognizing inalienable ‘moral rights’ in terms broad enough to survive any contractual transfer, i.e. they cannot be extinguished.  Furthermore moral rights are available only to flesh-and-blood creators, they alone being capable of self-expression.  While ‘legal persons’, i.e. corporations, can enjoy economic rights, moral rights as “inalienable’ are “attached” to the very “person” of the author. Thus “author’s rights’ only protect works if they bear some “imprint of personality” (Geller 1994).   The agreement of the Andean Pact expresses the nature of ‘moral rights’ available under the Civil Code tradition:

CHAPTER IV: MORAL RIGHTS

Article 11: Inalienable, Unattachable, Impresciptible and Unrenounceable

The author shall have the inalienable, unattachable, imprescriptible and unrenounceable right:

(a) to keep the work unpublished or to disclose it;

(b) to claim authorship of the work at any time;

(c) to object to any distortion, mutilation or alteration of the work that is prejudicial to the integrity thereof or to the reputation of the author.

On the author's death, the exercise of moral rights shall pass to his successors in title for the period referred to in Chapter VI of this Decision. Once the economic rights have lapsed, the State or designated agencies shall assume the defense of the authorship and integrity of the work (Andean Community 1993).

By contrast, copyright in the Anglo-American tradition recognizes only those rights necessary for inducing the making and marketing of works.  It avoids burdening the contractual transfer of economic rights either by denying moral rights (in the US) or by codifying them in terms that permit authors to contractually waive them (in Canada).  Copyright is available to anyone – legal or natural persons - capable of having works created or putting them on the market including business enterprises that employ creators and direct their work. To qualify for copyright protection works must, in the British legal tradition, display an investment of “skill and labor” or, under American law “some minimum level of creativity”, but without requiring any “imprint of personality” (Geller 1994).

This is the state of the law as we enter the Present.  In summary, in the English-speaking world we have copyright that is considered by the public and the creative community as a ‘natural right’ of the Creator.  In law, however, it is a trade regulation statute with monopoly power typically exercised by large, increasingly global, media Proprietors.  All Creator rights are subject to transfer by contract; no rights are considered inherent and inalienable to the individual Creator in spite of Chaffe’s eloquent incantation:

…  intellectual property is, after all, the only absolute possession in the world...  The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort of property… (Chaffe 1945)

This is the Myth of the Creator with which we live today.  And the clash between Civil Code’s author’s rights and Anglo-American copyright fuel an ongoing controversy between the United States and France (as well as much of continental Europe).  The United States wants the Europeans to extend all authors’ rights to American media corporations selling entertainment products in the European Union. The Europeans refuse arguing many of these rights are available only to ‘natural persons’, not corporate entities.