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Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 23, Issue 8

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Charles Dickens and the Ghost of Copyright Future

By Michael B. Stewart

It was two weeks before the publication of A Christmas Carol in 1843, and Charles Dickens had a real problem that he could not resolve. Copies of his not-yet released story were already selling all over New York for pennies and he was not the beneficiary of the sales. His work had been pirated. This was not the first time that the British author had issues with his works being appropriated without recompense in the United States. The same issue had arisen with The Pickwick PapersOliver Twist, and other early novels. American publishing houses consistently snapped up the works of the famous British author, re-published them in cheap editions, which sold all over the country, and they pocketed the proceeds without any remuneration to Charles Dickens. 

This was not a new issue in the mid-1800s. Benjamin Franklin, an iconic American politician, publisher, inventor, and Founding Father, would be considered a consummate copyright pirate today. In his role as a Philadelphia printer, Franklin regularly re-published the works of foreign authors in the eighteenth century without seeking permission or offering remuneration. 

To be fair to Franklin, the US, like many other countries in the 1700s and 1800s, had no copyright protection for the published creative works of foreign authors. This means that any creative work of a non-American author was free to be copied, distributed, adapted, displayed, or in the case of non-literary works, even performed with no legal requirement to provide remuneration to its creator. The same was true of American-made works in England and other countries. 

During his North American reading tour in 1842, Charles Dickens lobbied US legislators to recognize the copyrights of British authors but was unsuccessful. Despite receiving substantial pushback from publishers and the public in this first attempt, Dickens raised the issue again during another North American reading tour in 1867, to no avail. 

It was not until 24 years later that the US enacted the International Copyright Act of 1891 to extend at least some copyright protection to foreign authors of select countries. In turn, American authors began to have their own works protected pursuant to the copyright laws of those countries. 

Today, we often think of copyright protection in a global sense—especially since the advent of the Internet. The reality is that copyright protection has been—and continues to be—an evolving area of law in terms of what is protected, where that protection applies, and how long the term of protection endures. For other forms of intellectual property, things are more clear cut. For example, patents receive no reciprocal protection from country to country. In other words, patents may only be asserted in the country or jurisdiction where they are granted.

Even with the expansion of copyright protection toward the advantage of rights holders, protection is only available for a limited time. Every year, creative works go into the public domain, such as Winnie the Pooh and Happy Birthday

Until works enter the public domain, however, libraries provide crucial access to copyrighted works along with the services of librarians who are experts at finding, selecting, circulating, and organizing the information associated with such works. National Library Week is being celebrated in the United States starting April 23rd. In keeping with the theme of this year’s celebration, “There’s More to the Story,” remember the trials and tribulations of Charles Dickens in protecting his writings in the United States, and celebrate by reading another chapter. 

Michael Stewart is a founding member of Fishman Stewart. He has worked in a wide range of technical areas including information technology, e-commerce, telecommunications, and mechanical, aerospace, computer, and nuclear engineering. His practice includes domestic and foreign patent prosecution, e-commerce and information technology, patent opinions, intellectual property litigation, domestic and foreign trademark prosecution, trademark opinions, copyrights, trade secrets, rights of publicity, intellectual property evaluations/due diligence and drafting and negotiating technology and intellectual property agreements. Check out his full bio here.

If you are interested in learning more about Charles Dickens or are a fan of the modern American rock star Prince, author Nick Hornby recently published a book about the art, creativity, and the unlikely similarities between these two men.  It is an entertaining read!

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