Whispers on a not so clear-cut case of publish and be damned

A dispute over the copyright of poet John Clare's work has left scholar Simon Kovesi facing legal action

A joint letter from 28 scholars and poets including Seamus Heaney, Tom Paulin and Andrew Motion to The Times Literary Supplement two weeks ago brought welcome attention to the copyright of the 19th-century poet John Clare.

Although the English poet died 136 years ago, the copyright to the works not published in his lifetime is claimed by an American professor, Eric Robinson, formerly of the University of Massachusetts. How Robinson came to be in possession of this copyright in 1965, and the history of Clare publishing since then, is a story much whispered about, but rarely discussed in print. Clare's literary legacy of thousands of poems and reams of prose are now the subject of a potential legal wrangle between myself and Robinson.

So what were Clare's intentions for his literary estate? The passage of Clare's will is far from clear. Clare may well have written a legally binding will in 1825, when he was of sound mind, but it has since disappeared, and we have only an early draft version left, which was not formally probated. As Clare was committed to a mental asylum from 1841 until his death, any will written between those dates is of no consequence, not that any has surfaced. Research suggests that when publisher Joseph Whitaker purchased the rights to Clare's work from the poet's widow Martha in 1864 he did so without the formal or legal authority of the trustees to Clare's estate. It is on the legitimacy of that sale in 1864, for which there is no known supporting documentation, that Robinson's copyright claim must rest. If Whitaker did purchase the copyright from Martha Clare, he may have done so illegitimately.

After Joseph Whitaker's death in 1895, his company's claim to the copyright was all but forgotten. An employee of the firm, H. T. Kirby, wrote an article in 1932, having trawled through Whitaker family papers, in which he claimed that the company still owned the copyright. Yet editions of Clare's poetry were published by luminaries such as Edmund Blunden, Arthur Symons and Geoffrey Grigson, without any mention of Whitaker's or any other copyright claimant.

In 1940, Hitler's bombers saw to it that Clare's final will, together with any documentation regarding the 1864 sale, were destroyed. The link between Whitaker's and Clare faded into obscurity. For more than 80 years, Clare publishing was free.

But, in July 1965, Robinson set about reinstating the copyright. He reminded Whitaker's that they might have some claim to Clare's work, and clinched the purchase of it for Pounds 1. The document of sale is carefully worded: Whitaker's sells "all rights whatsoever possessed by the Company in the published and unpublished works of John Clare".

David Whitaker tells me that he believes his father Haddon, director of Whitaker's in 1965 and one of the signatories to the sale, was not sure whether his company owned any of the rights. The token value of the sale would seem to suggest that, anyway, Haddon Whitaker did not value the company's rights highly. David Whitaker alleges that his father was reluctant to sell to an individual scholar, but did so under gentle pressure from his friend Bruno Brown of Oxford University Press. OUP has been the main publisher of the Robinson-edited Clare editions since 1966. Since then, both OUP and Robinson have had control of Clare publishing.

My edition of Clare's poetry, published last year, was not the first challenge to Robinson's copyright claim. In the late 1970s, Anne Tibble and her publisher George Stephenson wanted to bring out an edition of Clare's greatest unpublished body of poems, The Midsummer Cushion. The fact that Tibble had been editing Clare for decades before 1965 did not prevent a battle. The story appears in a volume of her autobiography, Alone. She wrote: "Enough people have wrangled over Clare. But Mr Robinson will not agree to our publishing The Midsummer Cushion. He has written: 'I will defend my property to the last.'" According to Tibble, her publisher continued to apply pressure to Robinson "to produce his evidence of possession", but it was not forthcoming. George Stephenson attempted to serve a writ requesting sight of the copyright document and his solicitor even sought out Robinson's village retreat in Northamptonshire to do so. But Robinson had returned to America. "It was at this point that Robinson consented to publication," writes Tibble.

I think this is the closest the Clare copyright has ever come to being discussed in the courts. But anyone - be it an artist wanting to incorporate the poet's words in a design, or a publisher wanting to produce a new edition of the verse - has to take heed of Robinson's copyright claim. Or, they can do as I did: ignore it and risk legal action.

Yet, to my knowledge, no evidence that the claim is legitimate has ever been produced. After receiving a legal threat from Robinson's representatives in November 1999, my publisher Michael Gorman of M&C Services, Bangkok, asked them to substantiate the copyright to "the works" Robinson claims we infringed. Receipt was acknowledged but seven months later no proof of copyright ownership of any kind is forthcoming.

Does such documentation exist? I believe that the chequered history of the Clare estate and copyright raises serious doubts about Robinson's private claim to own the copyright to public manuscripts. My publisher and I await the reply of his representatives. We hope to hear soon, because the most important thing for the future of Clare publishing is clarification of the copyright. I am currently working on another "unauthorised" selection of Clare's verse, to be published in October. What will happen then?

There is no other case like this. In a recent edition of the European Intellectual Property Review, Jonathan Griffiths implies the claim may contravene Article 10 of the European Convention on Human Rights (enforceable in British courts from October). Robinson is on record as having said that the purchase of the copyright "was a brilliant piece of entrepreneurial effort", and he may well be the only major copyright beneficiary in the long history of Clare publishing, now into its third century. Ironically for the study of a poet so opposed to the enclosure of the open fields of his youth, the Clare field has been enclosed for 35 years. But as Tibble wrote in 1979: "Clare's copyright should be free for all time and in all ways."

A full version of this article is forthcoming in The Wordsworth Circle.

Simon Kovesi lectures in English at the University of Dundee and edits the John Clare Page: http://human.ntu.ac.uk/clare

* Should copyright be claimed so long after an author's death?

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