III.
M. le Hardy de Beaulieu acknowledges that the savage who first thought of substituting a hut, as a habitation, for the cave, has not the right to forbid the construction of others like it.
This concession is as important as the preceding, and we shall probably end in agreeing. We must now inquire where may be found the exact limit between inventions of which imitation is allowed, and those in which it is forbidden.
The man who first made a canoe from the trunk of a tree, either naturally hollow or artificially by fire, or otherwise,—may he forbid his neighbours to make one like it?
If he may, where, then, is the difference between the hut and the boat? If not, what is the reason for this prevention?
From the boat we might gradually go on, up to the latest Patent, by invisible transitions; and we have still to find the exact point at which M. le Hardy de Beaulieu might say, There is the limit!
We do not know whether, in the absence of all positive right which would guarantee a recompense to the inventor of the hut, a natural sentiment of justice would prompt the savages living in that country to make him a present of some useful object as a reward for this service, as M. le Hardy de Beaulieu suggests. We doubt it much; gratitude is an analytic virtue. The savages would probably have a certain respect for this man, whom they would look upon as gifted with superior qualities and faculties, but the presents would only arrive when, the contemporary generations being extinct, cheats and hypocrites would found on the inventions of this man some system of religion.
Yes, we acknowledge the truth and justice of the principle in virtue of which it is said, “Reward for merit.” But it must not be abused. Let a cultivator make a thousand trials, a thousand experiments, to give to the potatoes all the elementary qualities, all the nutritive virtue of wheat, and arrive at the object of his researches—to what recompense will he be entitled? According to the system of M. le Hardy de Beaulieu, no reward could equal the service which this individual would have rendered to mankind.
According to the system of non-property in inventions, this man would only have made his trials and his experiments—he would only have risked his advances of money, of time, and of labour—with the view of being able to sell his potatoes at a higher price than before, and, in fact, they would command a higher price, by means of which he would find himself sufficiently rewarded. This man asks nothing of society; he requires neither Patent, nor guarantee, nor monopoly, nor privilege; because the law has wisely placed beyond the reach of Patents all improvements in agriculture.[5] Does this imply that agriculture no longer progresses, that the breeder of cattle does not improve, that they remain completely in statu quo? It is not from M. le Hardy de Beaulieu that we learn that the want of Patents does not hinder for an hour the progressive advance of agriculture; quite the contrary.
Establish the same system for all that concerns manufactures, and inventions will follow one another as rapidly as they now do. They will be more serious, for those who are engaged in them will no longer be excited by the allurements which the Patent-Laws dangle before their eyes, and will no longer lose their time in running after useless things and mere chimeras.
We do not wish to prolong too far this answer, but we cannot pass in silence the arguments which M. le Hardy de Beaulieu thinks he has found in the facts relating to the inventor of the mariner’s compass, and to the discoveries of Lieutenant Maury. We will simply remind him of the following passage from Bastiat: “He who can gain assistance from a natural and gratuitous force confers his services more easily; but for all that, he does not voluntarily renounce any portion of his usual remuneration. In order to move him, there is required external coercion—severe without being unjust. This coercion is put in force by competition. So long as it has not interfered—so long as he who has utilised a natural agent is master of his secret—his natural agent is gratuitous, no doubt; but it is not yet common; the victory is gained, but it is for the profit of a single man, or a single class. It is not yet a benefit to all mankind. Nothing is yet changed for the multitude, unless it be that a kind of service, though partly rid of the burden of labour, exacts nevertheless full pay [la rétribution intégrale]. There is, on one hand, a man who exacts of all his equals the same labour as formerly, although he offers in exchange only his reduced labour; there is, on the other hand, all mankind, which is still obliged to make the same sacrifice of time and labour to obtain a product which henceforth nature partly realises. If this state of things should continue with every invention, a principle of indefinite inequality would be introduced into the world. Not only we should not be able to say, value is in proportion to labour; but we should no more be able to say, value has a tendency to be in proportion to labour. All that we have said of gratuitous use, of progressive community, would be chimerical. It would not be true that labour [les services] is given in exchange for labour [des services] in such a manner that the gifts of God pass from hand to hand, par-dessus le marché, on the man intended [destinataire], who is the consumer. Each one would always exact payment for not only his labour, but also for that portion of the natural forces which he had once succeeded in applying. In a word, humanity would be constituted on the principle of a universal monopoly, in place of the principle of progressive community.”—Harmonies Economiques, Vol. vi., p. 354.
We think, with Bastiat, that the use of natural agents ought to be gratuitous, and that no one has the right to artificially monopolise in such a way as to exact royalties [prélever des redevances], which are not due, and which often are obstacles almost as insurmountable as those which invention ought naturally to remove.
T. N. Benard.
[5] Unfortunately, this is not true of British law. The illustration founded on it is (like the rest of these papers) admirable.—R. A. M.
SPEECH OF MICHEL CHEVALIER,
AT THE MEETING OF THE “SOCIÉTÉ D’ÉCONOMIE POLITIQUE,” ON THE 5TH JUNE, 1869.
(From the June Number of the Journal des Economistes.)
M. Michel Chevalier, Senator, proposed to consider Patents in their relation to freedom of labour [la liberté du travail], a corner-stone of modern political economy, and to the principle of the law of property, which is greatly respected by economists and which serves them as guide.
Does the principle of freedom of labour accommodate itself to that of Patents? It may be doubted. All Patents constitute a monopoly; now, it is indisputable that monopoly is the very negation of freedom of labour.
In the case of Patents, it is true, monopoly has a limited duration; but in France this duration generally extends, if the Patent is worth it, to fifteen years; which makes a long time in our day when the advances of manufacturers are so rapid and so quickly succeed one another. A hindrance or an obstacle which lasts fifteen years may greatly damage and seriously compromise important interests.
It would be easy to exhibit by examples the extent and the importance of these disadvantages.
In France the manufacturer to whom a new apparatus or a new machine is offered is always in uncertainty whether the invention proposed is not already the subject of some Patent, the property of a third party, in which case he would be exposed to the annoyance of a law-suit at the instance of this third party. It follows that he frequently hesitates about adopting a machine, apparatus, or method of work, which would be an advantage not only to the manufacturer, but to the community at large, whom he might supply better and cheaper. Another case which occurs to us is that of a manufacturer in whose factory an improvement has suggested itself. He is forced to take out a Patent, and consequently to observe formalities and undertake expenses with which he would rather dispense; he is obliged, and becomes a patentee, whether he will or no; because, if he did not, it might happen that the improvement might come under the observation of one of the numerous class of Patent-hunters. This man might take out a Patent, which is never refused to the first comer; and once patented, he might annoy and exact damages from the manufacturer with whom the invention, real or pretended, actually had its birth.
In France the annoyances which Patents may occasion are very serious. It is well known that, by the French law, the patentee may seize not only the factory of the maker, but also, wherever he may find it, the machine or apparatus which he asserts to be a piracy of that for which he has taken a Patent. He may take it away or put it under seal, which is equivalent to forbidding the use of it. M. Michel Chevalier thinks that this is a flagrant attack on the principle of the freedom of labour.
It can also be shown how, in another way, labour may be deprived of its natural exercise by the monopoly with which patentees are invested. When an individual has taken out a Patent for an invention, or what he represents to be such, no one is allowed to produce the object patented, or use it in his manufacture, without paying to the patentee a royalty, of which he is allowed to be the assessor, and which sometimes assumes large proportions. The result is, that the produce manufactured can only be offered in foreign markets at a price so augmented that the foreigner refuses it if some other producer, residing in a country where the Patent is not acknowledged, establishes competition. Thus, for instance, France, which worships Patent-right, cannot export the “Bessemer” steel to Prussia, because there this product is not patented; whereas in France, on the contrary, it is subject to a heavy royalty, on account of the Patent.
The same thing may be said of velvets, which have been very much in fashion, and for which a French manufacturer took out a Patent. The effect of this Patent was, that French manufacturers of this stuff were shut out from the foreign markets, because outside France they had to encounter the competition of Prussia, whose manufacturers were not subject to any royalty, the Patent not being acknowledged there.
In our day, when export trade excites so great an interest among all manufacturing nations, and has so much influence on the prosperity of internal commerce, M. Michel Chevalier believes that the observation he is about to make ought to be taken into serious consideration. At least it follows, according to him, that before approving and continuing the present system of Patents, it would be necessary that they should be subjected to uniform legislation in every country. Now there are manufacturing nations—Switzerland, for instance—which absolutely refuse; there are others where Patents are subjected to so many restrictions that it is as if they did not exist; such is Prussia.
From the point of view of the right of property, it is contended that Patent-right should be respected, since it only assures property in invention in the interest of him to whom the community is debtor. M. Michel Chevalier sees in this argument only a semblance of the truth. We must first inquire whether an idea may really constitute an individual property—that is, exclusive personal property. This pretension is more than broached. A field or a house, a coat, a loaf, a bank-note, or credit opened at a banker’s, readily comply with individual appropriation, and can hardly even be otherwise conceived of; they must belong to an individual or to a certain fixed number of persons; but an idea may belong to any number of persons—it is even of the essence of an idea that once enunciated, it belongs to every one.
Besides, is it certain that the greater part of patentees have had an idea of their own, and that they have discovered anything which deserves this name? Of the great majority of patentees this may be doubted, for various reasons.
The law does not impose on the individual who applies for a Patent the obligation of proving that he is really the inventor. Whoever has taken out a Patent may very easily turn it against the real inventor; this has occurred more than once.
Besides, the law lays it down as a principle that it is not an idea that is patented, and constitutes the invention valid; and thus it excludes from the benefit of patenting the savants who make the discoveries, of which Patents are only the application.
It is by the advancement of human knowledge that manufactures are perfected, and the advancement of human knowledge is due to savants. These are the men prolific in ideas; it is they who ought to be rewarded, if it were possible, and not the patentees, who are most frequently only their plagiarists.
M. Michel Chevalier does not desire systematically to depreciate patentees. Among them there are certainly many honourable men. The inventions, real or pretended, which they have patented are supposed to be new and ingenious uses or arrangements [dispositions], by help of which we put in practice some one or more specialities of manufacture; true discoveries are always due to the savants. But in general these arrangements, represented as new, have no novelty.
In the detailed treatises on Mechanics, Physics, and Chemistry, in books of technology, with their accompanying illustrations, such as are now published, we find an indefinite quantity of combinations of elementary apparatus, especially of mechanical arrangements, and very often the work of professional patentees consists in searching through these so numerous collections for uses and arrangements, which they combine and group. What right of property is there in all this, at least in the greater number of cases?
Against the pretended right of property alleged by the defenders of Patents there will be much more to say. There exists in the greater number of cases much uncertainty about the inventors, even when true and important discoveries are in question. Is it known with certainty who invented the steam-engine, who invented the aniline dyes, or photography, even? Different nations are at variance on these points, as formerly they were on the birthplace of Homer. The fact is, that the majority of inventions are due to the combined working [collaboration] of many men separated by space, separated by great intervals of time.
On this subject M. Michel Chevalier repeats what he heard from an eminent man who was Minister of Finance at the time when Daguerre received the national recompense which had been awarded him with the acclamations of all France. One of the Government clerks brought to this eminent personage proof that he too had made the same invention; and also there were the labours of M. Niepce de Saint Victor, analogous to those of M. Daguerre.
[M. Passy, the chairman of the meeting, confirmed the statement of M. Michel Chevalier on this fact.]
M. Michel Chevalier, in continuation, remarked that in our time industrial arts are subject to great changes in the details of their operations.
Independently of the general alterations which from time to time completely change the face of any given manufacture, there is no important workshop where some useful notion is not occasionally suggested by some mechanic or overseer, which leads to minor improvements [un perfectionnement de détail]. It would be an abuse to grant, during a term of fifteen years, or even a much shorter, exclusive use of any particular improvements to any single individual. It would not be just, for it is quite possible that the idea might have occurred to another at the same time, or that it might occur the next day. It would even be against the general interest, for it would fetter competition, which is the chief motor in the progress of the useful arts.
But it is said inventors are useful to society; we must therefore recompense them. To this M. Michel Chevalier answers that it may be too liberal to confer the flattering title of inventor on men who, when a veritable discovery has been made by savants, push themselves forward to appropriate the profits, in securing by Patents the various special applications which may be made of it. Besides, there are different sorts of recompenses; there are other than material rewards, and these are not the least coveted. The savants who are the greatest discoverers are satisfied with these immaterial rewards—honour, glory, and reputation. The example is worthy of recommendation; not but it is quite allowable for a man to extract from his labour [travaux] whatever material recompense he can. But, in many cases at least, the Patent is not necessary for this purpose. The authors of some useful discovery would often have the resource of keeping their secret and working the invention themselves. That would last for a time. Even under the system of Patents several inventors have thus sought and found an adequate remuneration.
Thus the famous Prussian steel manufacturer, M. Krupp, has taken out no Patent, and yet has made a colossal fortune; also M. Guimet, of Lyons, inventor of French blue. Their secret remained in their own hands for more than fifteen years, the maximum duration that their Patent would have had in France.
Lastly, in the case of some truly great discovery it would be natural to award a national recompense to the inventor. If James Watt, for instance, had received from the British Parliament a handsome sum, every one would have applauded it. These rewards would not impoverish the Treasury, since similar cases are of rare occurrence.
In recapitulation, Patent-right may have been allowable in the pasts when science and manufactures had not yet formed so close and intimate a union. It was advisable to attract towards manufactures, by means of exceptional inducements, the attention of those who made a study of the sciences. But now that the union is consummated, Patent-right has ceased to be a useful auxiliary to industry. It is become, instead, a cause of embarrassment and an obstruction to progress. The time is come to renounce it.
Another speaker at the meeting, M. Paul Coq, thought that, on a question so delicate and controverted history furnishes instruction which directs to a right solution. Notably Franklin, a genius eminently practical, declared himself unwilling to avail himself, as to his numerous discoveries, of any Patent. The refusal of this great man is founded upon the principle that every one receives during his whole life ideas and discoveries from the common fund of knowledge by which all profit, and therefore ought, by reciprocation, to let the public freely benefit by every invention of his. This, with Franklin, was not a mere sentimental truth, but a practical conviction, based upon reasons worthy of the author of “Poor Richard.” There is in the bosom of society a constant exchange of beneficial thoughts and services. Every one stimulated by the efforts of others ought, in the spirit of equity, to make the community participants of the improvements and useful applications for which he has in a manner received payment in advance. On this system, equality, competition, and freedom of industry find their account in the law of reciprocity; whereas, on the footing of privilege established and defined by the theory of Patents, there is created an artificial property, along side of that rightful property which has in it nothing arbitrary or conventional, and depends simply for its existence on civil law. These circles, thereby traced round the inventor and his discovery, are so many hindrances and so many obstacles to the expansion of forces, in the way of continuous progress. Under pretext of maintaining individual rights, improvement is in reality paralysed by superimposed difficulties, and especially litigation without end, on account of which nobody dare touch, either far or near, what has been appropriated. The numerous actions at law, raised with a view to ascertain whether such and such a process constitutes a perfectionation, a new application, or merely an imitation, are my proof. There is another proof in the distinction attempted to be made between matters patentable and methods scientific which may not be patented. All this, as it affects progress, the free expansion of forces, is infinitely grave. Franklin has found for his precepts, already alluded to, more than one adept pupil. One modest savant, whose name deserves to be better known among us for his numerous services rendered to science as well as to the arts—Conté—honoured to replace in France the pencils of England, the importation of which was not possible in time of war—not only supplied by his new process the want of plumbago with success, but made it better than the English. To him are due, besides black-lead pencils, which make his name celebrated, the crayons of various colours, which have been so serviceable in the arts of design. Well, like Franklin, he presented his process to industry, and contented himself with being first in the new manufacture. It must be remarked that he who thus opens the way easily maintains the first rank which the date of his invention assigns him, and which public confidence assures him....
Before concluding, M. Paul Coq adverted to the distinction between the right of property generated by a creation of a work of art or of literature, and factitious property decreed in the interests of industry. The skilful painter, who should copy faithfully line for line, tint for tint, a chef d’œuvre like the picture of Ingres, which every one knows, “The Source,” in order to expose it for sale and pocket the advantages, not merely lays hold of the property of a great artist who lives by the fruit of his talent, but perpetrates, in all points of view, an action mean and vile. To inventions in the domain of the useful arts, processes and operations do not carry the stamp of personality, which is the glory of the artist and author, and which of itself constitutes a protection equal to that which protects right of property.
The invention is something impersonal, like a service rendered and returned, which is not exchanged or paid by services of equivalent weight and description. There is, therefore, no plausible objection to maintaining unimpaired the common right, which, by its freedom of movements, its equality, and its reciprocations, alone efficaciously favours the result of which these are the indispensable corollaries.