Think you are co-authoring a paper? Think again…

Recently, the Intellectual Property Enterprise Court (IPEC) evaluated when an individual qualifies as a joint author of an academic article. Applying the principles developed in Kogan v Martin [see IPKat here], the Court emphasised that only authorial contributions can form a basis for authorship claims.

Background

In 2015, Professor Ardemis Boghossian hired Dr Dejan Djokic as a postdoctoral researcher to assist on a research project at the Ecole Polytechnique Federale de Lausanne. Djokic prepared a draft paper on the project he had been working on and initially listed, inter alia, Boghossian as an author. However, in October 2017, he published a modified version in the journal “Nanotechnology” without naming her as one of the co-authors. 

This led to a dispute involving Boghossian, Djokic, and IOP Publishing. Boghossian claimed joint authorship of the literary work and alleged copyright infringement, arguing that the published article substantially reproduced the initial draft she had contributed to.

Nevertheless, after assessing her involvement in the creation of the draft, the Court concluded that she had not contributed to it in an authorial way, as per Infopaq, and therefore, could not claim copyright infringement.

Court’s assessment of joint authorship

Under s. 10(1) of the Copyright, Designs and Patents Act (CDPA), and as clarified by Floyd LJ in Kogan v Martin, joint authorship requires the non-distinct contributions of two or more authors to a work. This necessitates: 

• collaboration in the creation process,
• exercise of significant skill that features in the work, and
• demonstration of each author’s own intellectual creation in the final product.

While having a ‘final say’ may be relevant, it is not decisive. It is also not decisive to ascertain ‘who did the writing’. And, finally, merely providing editorial comments and suggesting some ideas is not an authorial contribution. 

An academiKat co-authoring a new article
on New Year's Eve!

Boghossian asserted that the draft of the paper was a “joint effort” and she was the principal researcher deciding the content of the paper, providing the outline, and identifying the literature to be cited. She further alleged that she had provided significant corrections and amendments. When tested against the Kogan v Martin factors, it becomes apparent that having a final say over the content or suggesting sources cannot amount to authorship. However, providing the outline, or making specific corrections and amendments can be authorial, depending on their nature.

Starting with the corrections and amendments, Djokic claimed that he had authored the draft “single-handedly” with “zero input” from Boghossian. Although she reportedly returned a marked-up hard copy, the evidence failed to clarify what specific changes she made. As the party asserting joint authorship, the burden of proof rested on her; yet her vague descriptions and the absence of any supporting documentation could not persuade the Court. Notably, one such key amendment was the deletion of a section. But contributions that are not expressed in the final work cannot be treated as authorial.

Similarly, the Court found Boghossian’s outline insufficient. The evidence suggested that she provided merely a highly simple structure, consisting of a title, an abstract, the four primary sections of the paper – Introduction, Computational Details, Results and Discussion, and Concluding Remarks – followed by an acknowledgements and footnotes section. The Court identified this as an “entirely orthodox structure” for scientific papers, leaving no room for the exercise of creative freedom. Moreover, even the source she considered the most significant one to rely and build on was omitted by Djokic, further distancing her from the final work.

In practice, it may be common for joint authors to disagree on various points at different stages of the creation process, leading to one of the authors’ contributions being reflected more in the final work than the other’s. It may, therefore, be possible to argue that in cases where one joint author’s suggestions are dismissed or neglected, it should not simply be held that they provided no authorial input. However, no matter how substantial, original, or creative one’s suggestions might be, an authorial contribution necessitates that those suggestions are expressed in the final work. This is not only a requirement for joint authorship but also for copyright protection generally. If it is not possible to claim copyright for abstract ideas that are not expressed in an original way, then it should, a fortiori, not be possible for someone to claim joint authorship over a work which does not include any of their intellectual creations.

Finally, Boghossian underlined the fact that her name was included in the list of authors on the draft, as well as on a conference poster presenting the project’s findings. This, she argued, granted her authorship. However, the witness statement from Professor Benoit Deveaud demonstrated that it is “standard practice” in academia to create a draft with a proposed list of authors who are invited and encouraged to contribute. Under this practice, only those who actually provide authorial contributions following the ‘invitation’ are identified as the actual co-authors. Accepting this evidence, the Court rejected the notion that, under copyright law, the mere presence of a supervisor’s name on a draft or poster could confer joint authorship upon Boghossian – who could not adequately prove that she had contributed to the paper after this ‘invitation’.

Concluding remarks

The IPEC provided at least two key lessons for co-authoring academic papers. First, because scientific projects can take years to result in a publication, it is vital to discuss and keep a reliable record of each researcher’s contributions to the final paper. The primary reason for rejecting Boghossian’s joint authorship (and accordingly, copyright infringement claim) was the lack of clear, reliable evidence. Her claims were either too vague or relied on undefined phrases like “substantial amendments”, which do not necessarily translate to original under copyright law. It is therefore advisable to maintain a list of inputs or use shared documents where changes can be tracked and attributed, while also summarising all drafting-related communications in writing.

The second lesson is the distinction between academic practice and copyright law. Being entitled to or expecting to be offered authorship under academic custom and being an author under copyright law are two different things. It may be customary or a gesture of goodwill to include one’s supervisor as a co-author in academic contexts, such as in conference presentations and posters. However, copyright law requires anyone claiming authorship to have expressed their own intellectual creation by stamping the work with their personal touch. It is for this reason, for instance, that peer-reviewers or editors are not treated as joint authors of the articles they critique. Accordingly, it only made sense for the IPEC to reject the joint authorship claims of a supervisor who had merely provided guidance without making copyrightable contributions to the final article.

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