In brief
- Joint authorship in copyright law requires collaboration where each author contributes skill and intellectual creation through free and expressive choices, not merely technical input.
- A postdoctoral researcher's supervisor claimed joint authorship of a research paper, alleging she contributed to its structure and content through whiteboard discussions and manuscript edits.
- The Intellectual Property Enterprise Court (IPEC) rejected the claim, finding that supervision, technical feedback, and editorial suggestions do not constitute joint authorship without evidence of creative contributions.
- The case underscores the importance of clear and contemporaneous documentation in academic collaborations.
Background
Prof. Boghossian was an Assistant Professor at the Ecole Polytechnique Federale de Lausanne's (EPFL) Institute of Chemical Sciences and Engineering, leading the Laboratory of Nanobiotechnology. In April 2015 she hired Dr Djokic as a postdoctoral researcher for a project on fluorescence in single-walled carbon nanotubes.
Dr Djokic prepared a draft paper entitled "Quantum yield in polymer wrapped single walled carbon nanotubes", sending an advanced draft to Prof. Boghossian in August 2015.
In December 2015 Dr Djokic left Prof. Boghossian's lab, and a dispute subsequently arose over Dr Djokic's wish to publish a modified version of the paper. The dispute was escalated to EPFL's ethics committee, and resulted in a mediation in March-April 2016, where an agreement was made (albeit not properly documented) regarding publication.
In accordance with the agreement, Dr Djokic submitted the modified paper to IOP Publishing listing himself and Mr Goswami (an undergraduate student in Prof. Boghossian's lab) as joint authors, and it was published by IOP in the October 2017 edition of Nanotechnology.
Prof. Boghossian subsequently issued copyright infringement proceedings against IOP and Dr Djokic, claiming joint authorship and publication without her consent.
What are the legal requirements for joint authorship?
Section 10(1) of the Copyright, Designs and Patents Act 1988 (CDPA) defines a work of joint authorship as one "produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors".
The Court of Appeal previously provided guidance in Kogan v Martin about the principles for assessing a claim of joint authorship. Four elements must exist for joint authorship to arise: (i) collaboration; (ii) authorship; (iii) contribution; and (iv) non-distinctiveness of contribution. For a further detailed explanation of these elements, please refer to our article on Kogan v Martin.
In this case, the IPEC emphasised several key principles regarding the assessment of joint authorship, including:
- Determining whether there is a collaboration to create a work requires more than asking "who did the writing?".
- Joint authors must contribute a significant amount of skill into the creation of the work, including creating, selecting or gathering together the detailed concepts which the words have fixed in writing. A contribution is not relevant if it is not expressed in the final work, e.g., if it was deleted.
- A joint author must contribute elements which express their own intellectual creation through free and expressive choices.
- Editorial corrections, critique, or ad hoc suggestions without wider collaboration do not qualify as joint authorship.
The IPEC noted that scientific papers describing technical or mathematical concepts may have limited room for creative freedom of expression.
The IPEC's decision
The IPEC held that Prof. Boghossian was not a joint author and therefore Dr Djokic and IOP were not liable for copyright infringement. In particular, there were certain challenges in Prof. Boghossian's evidence and contradictions with contemporaneous documents, which did not evidence her alleged authorial contributions. Further, even if Prof. Boghossian had been a joint author, she had consented to publication through the mediation agreement.
Prof. Boghossian relied on three main categories of alleged authorial contributions:
1. Sketching out the structure
Prof. Boghossian claimed she had sketched out the paper's structure, section descriptions and transitions between the sections, as well as the relevant literature to be cited, on her whiteboard.
This did not amount to an authorial contribution. The structure was simple and orthodox, containing only a title, abstract, four standard sections, acknowledgements and footnotes, allowing no room for creative freedom of expression.
2. Manuscript changes
The IPEC found it likely Prof. Boghossian had amended one hard copy draft of the paper but could not find, on the evidence, that she did so more than once. Critically, Prof. Boghossian had no record of the manuscript changes she claimed to have made and no memory of what they were. This was essentially asking the court to accept mere assertions.
3. Conference poster
Prof. Boghossian relied on a September 2015 conference poster containing verbatim text from the draft paper's introduction and naming her as an author (alongside Dr Djokic and Mr Goswami) as demonstrating acknowledgement by Dr Djokic of her joint authorship.
The IPEC rejected this, noting the burden remained on Prof. Boghossian to satisfy the court she was a joint author. It accepted evidence that standard academic practice is for the main author to propose co-authors in the draft (as Dr Djokic had done), but those named in the final version are only those who have provided input.
Takeaways
1. Supervision and technical input do not create joint authorship
Supervising a project, providing technical feedback, suggesting corrections, or discussing work does not necessarily create joint authorship. Contributions must express intellectual creation through free and expressive choices. Standard structures, technical suggestions, and editorial corrections are unlikely to qualify.
2. Contemporaneous documentation is critical
Without contemporaneous records of contributions, courts cannot assess whether someone made sufficient contributions for joint authorship. Assertions made years later, particularly in litigation without documentary evidence, will be viewed with caution.
3. Being named as an author is not conclusive
Being named as an author on a draft paper or poster does not prove joint authorship.
4. The burden of proof matters
The burden is on the person claiming joint authorship to prove it on the balance of probabilities. Mere assertions without supporting evidence will not suffice. Prof. Boghossian was unable to prove her case despite Dr Djokic not attending the trial or giving oral evidence.
5. Academic employment contexts require careful IP management
Research institutions and researchers should put in place clear agreements about authorship and copyright ownership. In this case, the employment agreements provided that the researchers owned copyright in literary works they authored during employment, contrary to the usual position under section 11(2) CDPA where the employer will own the work.
How Mishcon de Reya can help
Mishcon de Reya's Intellectual Property team has extensive experience advising clients on complex copyright and authorship disputes, particularly in academic and research contexts. Our team works closely with the firm's Employment and Technology groups to provide comprehensive advice on IP ownership issues arising from collaborative projects, employment relationships, and research agreements. We can assist with drafting clear authorship and IP ownership agreements at the outset of projects, advising on disputes regarding joint authorship claims, negotiating settlements and mediation agreements, and representing clients in litigation. Whether you are a research institution, principal investigator, or individual researcher, we can help protect and enforce your intellectual property rights and resolve disputes efficiently.