Book review: "Copyright and Collective Authorship: Locating the Authors of Collaborative Works"

Former Guest Kat Mathilde Pavis offers readers a review of the book by Daniela Simone, "Copyright and Collective Authorship: Locating the Authors of Collaborative Works". 

The copyright dispute over the script of the hit film Florence Foster Jenkins revived interest in the joint-authorship test for copyright in the UK (see, Martin v Kogan (2017) and (2019) here and here). This review brings you "Copyright and Collective Authorship: Locating the Authors of Collaborative Works", by Dr Daniela Simone from University College London, the book that influenced the Court of Appeal [Merpel adds: Isn’t that the dream of every author?] in overturning the first instance decision (according to Simon Malynicz QC, counsel of Kogan). 

Simone assesses how UK law defines shared authorship and how authorship is then allocated among creative collaborators. The book confirms copyright’s reputation as a legal framework ill-suited for collaborative creative processes, arguing that it prefers single authorship (and ownership). As a result, rights tend to be concentrated in singular, rather than, multiple, hands.

Simone explains the ‘why’ for copyright's bias for single authorship and where such bias might come from. Simone then challenges this bias by offering an alternative read on copyright and collective authorship.

The book opens with a description of sole versus joint-authorship under UK law (Chapter 2). Simone’s analysis of case law on joint authorship sheds light on the oddities and incoherencies of the doctrine. There is no doubt that copyright aficionados will be familiar with the cases reviewed in the book (indeed some have been covered by our Kats, see here, here and here). But here are four fun facts about the joint-authorship doctrine that you might not be aware of:

(1) Joint-authors are held to a higher standard. In comparing the tests of single authorship with that of joint-authorship, Simone reveals that UK courts hold parties to a higher standard when they seek ‘joint-authorship’, because they must demonstrate a more ‘significant’ or ‘substantial’ contribution to the work. This difference in threshold has no statutory basis, as the Copyright, Designs and Patents Act 1988 (CDPA) is neutral on this question (as was the text of the previous statutory formulations, e.g. here).

(2) The test for joint-authorship is built upon a small number of highly fact-sensitive cases. There is scant precedent on joint-authorship to turn to for guidance. The few case law authorities that we do have are difficult to apply because each case involves different types of creative work, creative processes and collaboration patterns.

(3) The joint-authorship doctrine is ‘polluted’ by concerns about shared ownership. Judicial discussion on the attribution of joint authorship often address whether it would be practical for the ownership of the work to be shared between multiple parties. This approach, Simone argues, conflates two different concepts of copyright (authorship and ownership), which copyright law takes such care to distinguish.

(4) The test for joint-authorship breaches the principle of aesthetic neutrality. It is a well-established principle of copyright law that copyright should apply regardless of the work’s aesthetics, artistic quality or genre. Judges keeping to this principle in the context of joint-authorship claims have complicated this jurisprudence. This principle has courts avoiding language that might refer to the aesthetics, genre or quality of the work. This is especially true when judges assess the evidence submitted by the parties on the creative process and their relative contribution to the work. But courts end up producing open-ended, vague, abstract, and inconsistent language by being overly cautious on this point. 

Importantly, Simone’s analysis shows that copyright’s reluctance to recognize multiple authors stems from the interpretation of the law (i.e. case law) rather than the language of the statutory provisions. This begs the question: why have we (lawyers) introduced a bias for joint authorship into copyright where there is none to be found in the statute? This tendency seems all the more incongruous since it is now well documented that creativity is often a collaborative process. This reality clashes with the legal representation of authorship that usually portrays the creative process as a “solo” act (for a similar criticism of the patent system, see here). 

Simone’s chief recommendation is to close this gap between the law and social norms on authorship and credits so that collective authorship enjoys its proper place within the framework of copyright. The author proposes to do so by importing into copyright law some of the more nuanced field-specific practices according to which collaborators negotiate authorship. Simone suggests that this should bring copyright into line with the expectations of creators on authorship and credits.

With this in mind, Simone offers solutions, or ‘ways forward’, to integrate ‘social norms’ (i.e. sector-specific or industry practices) into the doctrine of joint-authorship. The closing chapters of the book (Chapters 7 and 8) are a guide as to how these social norms on shared authorship may be integrated within the law to rebalance copyright to give appropriate recognition of shared authorship. Unwelcome social norms, including customs that are the result of ‘abusive’ and ‘exploitative’ industry practices, or those that would contradict policy considerations core to copyright law, would be disregarded. 

These conclusions come after road-testing the joint-authorship doctrine on four types of collective authorship: Wikipedia entries (Chapter 3), Australian Indigenous Art (Chapter 4), scientific collaborations (Chapter 5) and films (Chapter 6). The use of these three case studies in this way keeps Simone’s critique of the joint authorship doctrine rooted in concrete examples. This is very good news if you are not facile with post-modern critiques on authorship or other esoteric analysis of the kind (and how many of us are?), as this book is not in that vein at all, making it much more accessible to readers.

This book is a welcome contribution to the scholarship for little has been published in such depth on the topic of collective authorship. The book is written and structured so that each chapter is self-contained and can be read individually. The downside is that the discussion can be repetitive at times when read in one sitting. But this a small price to pay for the luxury of being able to dive in and out of the book.

I will add one more thing is… footnotes! A good number contain interesting nuggets of commentary (which I would have loved to see addressed in the body of the monograph but I was nonetheless glad to encounter them at the bottom of the page).

This book will be particularly useful to students (undergraduate and postgraduate alike) and scholars exploring the concept of authorship in UK copyright law. Simone also refers to the US and Australian doctrines of authorship and joint-authorship to highlight how they differ from UK law.

Book reviewed: Daniela Simone, "Copyright and Collective Authorship: Locating the Authors of Collaborative Works" (2019, Cambridge University Press). 310 pages. Hardback, from publisher: 85 GBP.