Property in the Digital Age

• Author: Mr Alain Girardet
• Position: Conseiller, Cour de Cassation
• Pages: 92-99

IRISH JUDICIAL STUDIES JOURNAL

[2018] Irish Judicial Studies Journal Vol 2(1) 92

INTELLECTUAL PROPERTY IN THE DIGITAL AGE

Alain Girardet

Conseiller, Cour de Cassation

The idea that an author of a work or of an invention should be able to claim an

exclusive right, equivalent to a proprietary right, over his creation gradually came

into being in France during the course of the 18th century, as Sir Colin Birss

notes. Of course, the King had already been able to bestow upon an author and

upon an inventor exclusive rights of exploitation in the form of a privilege, as he

did for Clement Marot in 1538 and for Ronsard in 1554. However, this was not

a right. In the 17th and then in the 18th centuries the debates intensified and

jurists such as Domat (1625-1696) argued that ‘the creator of a new invention

should receive recompense for the use of his creation’ (The Civil Law in its

natural order, vol 1), then Malesherbes, Rousseau, Voltaire, Diderot and many

others called for the recognition of a right of exploitation vested in the author,

which could be passed on to his heirs for their benefit, highlighting those words

of Domat. From 1760 onwards several judicial rulings established this right.

The heirs of La Fontaine and of Fénélon were the first to benefit from the right.

All that the Revolution did was to build upon these existing developments.

However one must note here the effect that the statue of Anne of 1709 had

upon the rights of publishers, or more specifically Parisian publishers. These

publishers in Paris wanted the same advantages as their London counterparts, by

reference to the writings of English jurists and philosophers, such as the essays

of John Locke. These ideas crossed the English Channel. Both the British, who

considered that an author could not have rights in perpetuity, and the French,

who sanctified an author’s work, soon came to the conclusion that a person’s

right over his work was a very particular right. According to Michel Vivant,

1

this

particularity arose, as the French viewed it, from the fact that intellectual

property took its source and its extent from the very being of the author, whilst

from the British point of view, individual rights were not to result in an undue

impoverishment of the public domain. The parallelism of these two approaches

is reflected in the extent of the rights that our respective jurisdictions have

afforded to authors over the years.

Does this remain the case in the digital age? Are we not witnessing a challenge to

these ideas, and with this an erosion of intellectual property rights? Internet

users in vast numbers pirate the works of others, without compunction or

1

Michel Vivant , droit d'auteur et droits voisins , 3ème édition no11