The High Court (IPEC) has dismissed a copyright infringement claim, confirming that supervising research and providing technical input is insufficient for joint authorship. Rather, a person must contribute elements expressing their own intellectual creation through free and creative choices.
Background
Professor Ardemis Boghossian led a laboratory of nanobiotechnology, hiring Dr Dejan Djokic in a postdoctoral role, along with Mr Aranya Goswami as a summer intern. Dr Djokic prepared a draft academic paper, which was completed in advanced draft form and sent to Professor Boghossian, listing Dr Djokic, Mr Goswami and Professor Boghossian (among others) as authors. However, there was a dispute about the extent to which Professor Boghossian was involved in its creation.
After the relationship between Professor Boghossian and Dr Djokic broke down and Dr Djokic ceased working in Professor Boghossian's laboratory, Dr Djokic submitted the paper to IOP Publishing. The paper was published and credited to Dr Djokic and Mr Goswami.
Professor Boghossian claimed that she was a joint author of the paper and did not consent to its publication, which infringed her copyright.
Legal principles
Section 10(1) of the Copyright Designs and Patents Act 1988 provides that a "work of joint authorship" means a work 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(s).
In Kogan v Martin, Floyd LJ described joint authorship as "ultimately a unitary concept", but one in which the four elements of joint authorship required by section 10(1) must exist, namely collaboration, authorship, contribution and non-distinctness of contribution.
Critically, joint authors must each have contributed a significant amount of the skill which went into the creation of the work, judged by the Infopaq test (whether the supposed joint author has contributed elements that expressed that person's own intellectual creation through free and creative choices). Contributions that are not "authorial" in character do not count. Derivative works, editorial corrections or critique, or ad hoc suggestions of phrases or ideas where there is no wider collaboration, are insufficient.
Joint authorship claims
Professor Boghossian claimed she was a joint author of the paper as a result of authorial contributions through:
- sketching out the structure of the paper, descriptions of sections and transitions between sections, as well as relevant literature to be cited, on a whiteboard in her office
- manuscript changes made to hard copy drafts of the paper printed out and provided to her by Dr Djokic, and
- being named as a co-author on a conference poster produced in September 2015, which included verbatim quotes from the draft paper.
Court decision
The High Court (IPEC) dismissed the claim that Professor Boghossian was a joint author of the paper.
The structure of the paper was simple, containing only a title, abstract, four sections with basic headings ('I. Introduction', 'II. Computational Details', 'III. Results and Discussion' and 'IV Concluding Remarks'), plus acknowledgements and footnotes. The Court found that this was an entirely standard structure for a scientific paper of its type, and did not allow for any room for creative freedom of expression in an Infopaq sense. Furthermore, Dr Djokic did not rely on or cite the literature that Professor Boghossian had suggested to reference in the paper, so this could not be considered an authorial contribution.
The Court also found that Professor Boghossian had likely made manuscript amendments to only one hard copy draft, not the multiple versions she claimed. She had no record of the changes she said she had made and no memory of their content. Without evidence of what the amendments actually said, the Court could not assess whether they expressed her own intellectual creation.
The Court rejected the argument that being named as an author on a conference poster meant Professor Boghossian was a joint author. The Court accepted that, under standard academic practice, it is common for proposed co-authors to be named on drafts (eg professors providing corrections and supervision), with the understanding that they will only become actual co-authors if they provide sufficient input. The burden remained on Professor Boghossian to prove this, which she failed to do.
The Court concluded that Professor Boghossian had not satisfied on the balance of probabilities that she was a joint author of the paper by contributing to the paper in an authorial way in accordance with the Infopaq test. Accordingly, her copyright infringement claim was dismissed.
Key takeaway
This case highlights that joint authorship cannot be established without concrete evidence of authorial contributions. Professor Boghossian's claim failed because she could not prove that her contributions expressed her own intellectual creation through free and creative choices.
For those working in publishing or writing, the lesson is clear: authorial contributions must go beyond supervision, suggestions of standard structures, or editorial input. Where joint authorship is claimed, contemporaneous evidence documenting the specific nature and substance of creative contributions will be essential. Without this evidence, claims are unlikely to succeed.
