Victorian newspaper proprietor,
publisher and entrepreneur
In May 2014, an original copy of Oliver Twiss was put up for auction at £1,496. It would have gained nearly 100-fold in value since publication as the couple of shillings it cost in 1839 would now be a little more than £15.
For all its virtues, the 1842 Copyright Act perpetuated a system that was not entirely consistent with "encouragement of learning" as its statutory purpose.
The Stationers' Company was responsible for registering copyrights. Unlike the libraries to which the author had only to supply free copies, it charged hefty fees. The 1842 Act set these at 5s (about £25).
Growing from trade guild in 1403 to publishing monopoly in 1557, the Company had lost its trading advantage in 1711. The lucrative registration business endured until 1911. With engaging self-deprecation, the present Company has published an entertaining account of how the system was working in 1871.
Stationers in this context appears to mean publishers, yet it seems to have been common for those who made paper to be called stationers in the 18th century.
Lloyd's detractors point to plagiarisms like "The Penny Pickwick" and "Oliver Twiss" as evidence of his poor character. In his defence, it can be said that this was common practice at the time and that sales at low price were not entirely to the detriment of authors whose works became popular with a wider public, albeit in a bastardised form.
Morally, plagiarism was and is roundly condemned as cheating but, contrary to popular belief, Lloyd would still be found blameless under copyright law. Copyright exists in the expression of ideas, not in the ideas themselves. Plot and characters can therefore be copied as long as the work is totally rewritten.
Commercially, Lloyd's Dickens plagiarisms were a hit, selling as many as 50,000 a week and spawning some merchandising, such as songs, jokes and hats. The law was of little use to aggrieved authors and a legal action by Dickens's publishers in 1837 failed.
Although they shamelessly retold Charles Dickens's plots, Lloyd had them written for his particular readership. This led to a measure of inversion of the social order, with events viewed from the perspective of the "lower orders". Their popularity and the profitability that came with it probably helped Lloyd achieve his ambition of launching a newspaper.
Little can be said in defence of Lloyd's reprehensible behaviour in relation to Dickens whom he publicly taunted with the Penny Pickwick's commercial success – an unsurprising fact since Dickens's instalments sold for a shilling each. A relatively mild version of Lloyd's abuse can be read in the preface reproduced in Pictorial Pickwickiana (p.51).
This was particularly cruel since, in effect, Lloyd won a well-publicised lawsuit challenging the plagiarism. This left Dickens hurt and humiliated. Privately, he was every bit as abusive of Lloyd as Lloyd was of him.
In 1837, Dickens's publishers Chapman & Hall sought an injunction against Lloyd's "fraudulent imitation" of Dickens's work in The Penny Pickwick. Applying the law of fraud, the judge found that the publisher's barrister had not made out a case. Dickens was not even called on to give evidence, and the case was eventually abandoned.
Dickens had every reason to feel persecuted. He campaigned tirelessly from 1837 to get Parliament to enact a copyright statute and dedicated The Pickwick Papers to Thomas Noon Talfourd MP who had laboured on his behalf unsuccessfully. He also took the battle to the United States where his intervention was denounced.
In 1842, copyright law was amended, apparently in Dickens’s favour as author but to little effect. He won a lawsuit against a copier but the judge ordered him to pay the copier's costs. On that occasion, he said of the legal process: "it is better to suffer a great wrong than to have recourse to the much greater wrong of the law."
English law said little about unfair competition then and is still deficient compared with US and other European laws. Later in the 19th century, passing off was developed as a legal wrong, but it is doubtful whether even the modern concept would have covered this case since the goods in question had little more than the name in common.
In 1847, ten years too late, Chapman & Hall did the sensible thing and issued Pickwick in a cheap edition – 32 numbers for 4s.
Dickens's publishers did not base their claim on copyright infringement. The law still bore traces of the original monopoly right granted to the printer and focused rather technically on appearance, not content.
No doubt partly because of Dickens’s influence and popularity, the law was changed. The Copyright Act 1842 reflected the modern concept of copyright, giving authors the legal right to stop others publishing their works.
Before that Act was passed, an ill-defined concept of "re-origination" allowed copying if, for example, it was manifestly for the purpose of parody. US law now recognises "transformative" use as fair use of a copyright work. It was confirmed on 18 April 2016 when the Supreme Court declined to review a judgment upholding Google Books’ right to highlight passages in major works that match a search term (Authors Guild v Google, 2013. For legal analysis, see Joseph J Beard, Everything Old Is New Again: Dickens To Digital, 2004).
English copyright law was slow to follow. A specific exception for "caricature, parody or pastiche" was introduced on 1 October 2014. It was one of the options provided by EU law in 2002 (Directive 2001/29). The new legislation also creates a right to use quotations from published works and covers music, films and the other performing arts (it was the many parodies on YouTube that prompted the UK to change the law).
Permission is based on fair use. English law used to take a much more limited view of this concept than the US and many other EU countries. Whether the law develops further for parodies, quotations etc will depend on litigation. Since few copyright owners, if any, sued while their right was being infringed, it seems most unlikely that anyone will hazard the immense cost of a lawsuit under a new enactment making it less likely that they will succeed.