A Tale of Two Novelists: how Charles Dickens and Victor Hugo pioneered reform for the protection of literary and artistic works
From The Life and Adventures of Nicholas Nickleby by Charles Dickens © Donald Lainson and David Widger
The entertainment industry owes much of its success to the brilliant minds of Charles Dickens (1812-1870) and Victor Hugo (1802-1885). Combined, they have penned some of the world’s most beloved characters from Oliver Twist and Ebenezer Scrooge (A Christmas Carol) to Quasimodo (The Hunchback of Notre Dame) and Jean Valjean (Les Misérables). The screen has seen hundreds of adaptations of their most acclaimed works. Still, their legacies extend well beyond the lexical and lyrical.
Neither Dickens nor Hugo were strangers to the woes of the 19th century’s political and legal systems. Dickens spent his adolescence steeped in poverty and working in a boot-blacking warehouse after his father’s incarceration in the notorious Marshalsea debtors’ prison[1]. Hugo personally visited the Bagne of Toulon, an infamous penal establishment enforcing hard labour, and spent fifteen years in exile in Guernsey for his Republican ideals during the anti-parliamentary reign of Napoleon III. Both were outspoken against the slave trade and staunch supporters of social reform, often weaving politically infused subplots into their fictional masterpieces.
Separately, they fought to bring the issue of protection of authorship onto an international stage, culminating in the creation of the 1886 Berne Convention. This was the world’s first attempt to homogenize intellectual copyright laws across borders. Previously, copyright laws stipulating the protection of authorship, a concept still in its infancy at the time, were limited to national citizens only. As such, the novels of an English author in America were subject to heavy exploitation by the money-crazed publishing houses. Indeed this was the fate of Dickens, and international piracy would plague him for the remainder of his life.
Book piracy is defined as the ‘unauthorised reproduction, distribution, or sharing of copyrighted books without the author’s or publisher’s consent’.[2] In Dickensian times, book piracy was primarily carried out through physical counterfeit books. Publishers sent employees to wait at the docks and intercept new arrivals of foreign books, which would then be ‘reproduced and printed to mimic the original as closely as possible’[3], then sold at below the market price. With the advent of the digital age in the 20thcentury, new avenues of exploitation have appeared in the form of digital e-books downloaded illegally online, scanning and photocopying of books and through the sale of unauthorised translations denying royalties to the original author. Book piracy directly undermines intellectual property law which establishes the ‘right to ownership of anything created by the human mind’[4]. Today the law stipulates that authors’ copyrights are divided into moral and economic rights. Moral rights are ‘personal, indisputable and inalienable’[5] and exist largely in perpetuity, while economic rights are subject to time limitations and are transferable – the rights can be ‘sold, ceded or shared with third parties for economic or non-economic activities.’[6]
In Britain, intellectual property has existed loosely as a concept since the Statute of Anne [7](1710), which aimed to transfer the monopoly over copying restrictions from the hands of private printing companies to the government. The statute, also known as the Copyright Act, ‘directly protected the rights of authors by explicitly granting them exclusive rights to reproduce their intangible creations’[8]. It was replaced by the 1842 Copyright Act which extended copyright duration, expanded the field of copyright protection and addressed the issue of copyrighting posthumous work. Nonetheless, the legislation had its caveats. Copyright enforcement was weak, authors could not afford to enforce their rights against powerful publishers such as the Stationers’ Company in London, and the law was not as clearly defined as it is today.
In America, publishers believed that ‘a book belonged to the public, not the author’[9]. Copyright bills, such as the one passed in 1790 by Congress, were largely ignored. Though Dickens’ work was supposedly protected in Britain, pirated versions were being sold all across the Atlantic at a discount and he received no royalties for these publications. Even in Britain, The Pickwick Papers (1837) were plagiarised by English playwright Edward Stirling, who released the dramatic version before Dickens had even finished writing the last instalment of his book. As a result, Dickens directly attacked the legal system in his 1839 novel Nicholas Nickleby: “Indeed, it be, that the legislature has a regard for pocket-handkerchiefs, and leaves men’s brains, except when they are knocked out by violence, to take care of themselves.”[10] Dickens spoke publicly for the adoption of international copyright law, founding the Association for the Protection of Literature in 1843.
Unfortunately, his efforts were not realised during his lifetime, largely due to the immense public criticism he faced. He was attempting to dismantle the same system which brought him international fame, and the American media labelled him a hypocrite. Author Fred Kaplan writes in his book ‘Dickens: A biography’ (1988): “The opposition maintained that literature, like all imaginative creations, should not be regulated by law and commerce…that the free availability to publishers of an author's works did more to advance his reputation and long-term earnings than the restricted circulation created by the higher price of books on which a copyright royalty was paid.”[11]
Given that the tide of public opinion was firmly against an international copyright agreement in the 1840s, how did Victor Hugo engineer the feat that was the Berne Convention four decades later? A key distinction between Dickens and Hugo lies in their views on ownership of literary works. Dickens advocated for author’s sole ownership over their work, the right to profit from it and decide on its distribution. In contrast, Hugo believed that a work has two authors, the creator and the public. He supported the idea of a domaine public payent, or public domain, which would make a work the property of the public and freely available after a certain period. This made his campaign less provocative, especially in light of the backlash Dickens had received from publishing houses. Furthermore, while Dickens focused his attention on winning the support of the American nation, Hugo’s campaign mainly played out within European borders. The European attitude towards copyright was more sympathetic to droit d’auteur (rights of the author) than that of the American’s. As Professor B. Zorina Khan notes in her text ‘An Economic History of Copyright in Europe and the United States’: “Europeans have generally tended to adopt the philosophical position that authorship embodies rights of personhood or moral rights that should be accorded strong protections. The American approach to copyright has been more utilitarian: policies were based on a comparison of costs and benefits, and the primary emphasis of early copyright policies was on the advancement of public welfare.”[12]
It was Europe that spearheaded the movement in favour of international legal reform. The Brussels Conference on Intellectual Property held in 1858 saw multiple representatives from European countries discuss patent protection and copyright infringement on a global scale. The meeting, which grew out of the failure of bilateral agreements within the EU to regulate the epidemic of legal piracy, did not produce any substantial reform but planted the idea of an international framework solidly in the minds of many nations. In 1878, Hugo founded the International Literary and Artistic Association in Paris, whose objective was to create an ‘international convention for the protection of writers’ and artists’ rights’[13]. It wasn’t until 1883 in Berne, Switzerland, that the group gathered enough momentum to gain the support of the Swiss government. It took a further three years to draft and finalise the multi-party contract known in full as the Berne Convention for the Protection of Literary and Artistic works.
Initially, only ten European nations were party to the convention, but since then it has been ratified by as many as 181 countries. Most of the 18 countries and regions that are not signatories to the convention are parties to other international copyright agreements developed afterwards, including the Universal Copyright Convention[14] (1952) and the TRIPS Agreement[15] (1994). Key features of the Berne convention include:
a) Works that originate in one of the Contracting States shall be afforded equivalent protection in all other Contracting States as those that grant the same protection to the works of their nationals.
b) The duration of copyright is life-plus-seventy.
c) Protection is granted automatically and irrespective of the presence of protection in the nation where the work was created.
d) Member nations are entitled to develop their own national exceptions.
The laws stipulated in the convention were developed directly from the first draft proposed by Hugo and his literary comrades to the Swiss government.
The Berne Convention has proved instrumental in settling disputes concerning intellectual copyright law across borders. Article 6 of the convention is an international counterpart to the First Sale Doctrine[16], which states that the author’s distribution right is exhausted when the copyrighted work has been lawfully sold by the copyright holder. An author cannot claim a violation of copyright law, internationally or domestically, if the first copy was legally sold. The article was a decisive factor in the ruling of the US Supreme Court during the 2013 literary dispute Kirtsaeng v. John Wiley & Sons. When Kirtsaeng, a Thai student, arranged the import of John Wiley & Sons textbooks from his home to America and sold them for profit amounting to $1.2 million, the publisher sued Kirtsaeng on the grounds of copyright breach. The court, however, found in his favour that the First Sale Doctrine applied regardless of whether the books were bought abroad or domestically, in line with the Berne Convention.
Since 1886, the convention has been revised numerous times to account for the emergence of new technologies which facilitate electronic distribution of works. Its conception and ratification was a watershed moment in the history of international copyright law, one which found a happy medium between honouring the intellectual creativity of the author according to Dickens’s wishes, and fulfilling Hugo’s belief in the free celebration of culture.
Author: Zoe Storey.
[1] A prison which housed poor debtors. Dicken’s father was imprisoned for his debt to a baker
[2] "What is Book Piracy?," LinkedIn.
[3] Ibid
[4] Mondragon University, "Authors' Rights and Intellectual Property," Mondragon.edu.
[5] Ibid
[6] Ibid
[7] A Passed during the reign of Queen Anne 1702-1714
[8] Patry, "The Statute of Anne," Digital Law Online.
[9] "Dickens and American Copyright," Creative Law Center.
[10] Charles Dickens, Nicholas Nickleby (London: Chapman & Hall, 1839)
[11] Fred Kaplan, Dickens: A Biography (New York: Random House, 1988)
[12] B. Zorina Khan, "An Economic History of Copyright in Europe and the United States," EH.net,
[13] "Association Littéraire et Artistique Internationale," Wikipedia.
[14] The UCC was developed by UNESCO in 1952, adopted at Geneva, Switzerland, and came into force in 1955. It was developed as an alternative to the Berne Convention for those states that disagreed with aspects of the Berne Convention but still wished to participate in some form of multilateral copyright protection. These states included countries such as the United States and most of Latin America.
[15] TRIPS agreement (Trade-Related Aspects of Intellectual Property Rights) is established by the World Trade Organization (WTO) to regulate the international trade of intellectual property rights. The agreement sets out minimum standards for protecting and enforcing intellectual property rights in different countries.
[16] A legal concept that limits the rights of an intellectual property owner to control resale of products embodying its intellectual property.
