Academic Wranglings: Copyright in collaborative works of a scientific nature

Tim Ball of Brian Bacon & Associates has kindly sent Afro-IP an interesting judgement concerning the question who owns copyright in a research article based on the collaborative input of two academics working out of the University of Cape Town. In the case of Peter-Ross v Ramesar Judge Desai was asked to adjudicate on facts which roughly go as follows:

Peter-Ross and Ramesar worked together in developing the idea that the genetic location of bipolar disorders can be improved by concentrating on patients who were not only bipolar but also had some other genetic disorder. Although there is some dispute as to the nature and extent of their collaboration, a draft article (the "Draft") was prepared by Peter-Ross at the end of 2004 citing both academics as its authors. Their relationship then broke down. In 2006 Peter-Ross informed Ramesar that she had written and submitted an article (the "Article") for publication to Molecular Psychiatry. Ramesar informed the publication that he was to be joint author and the publisher stopped publication. Peter-Ross then sought a declaratory order that she was the sole copyright owner in the Article (copied almost entirely from the Draft) which Ramesar resisted.

A precursory issue was the involvement of UCT and the extent to which the university had control over the publication of the Article. In addition, counsel for Ramesar suggested that even if Peter-Ross were to succeed, the result would be practically "academic" because the article would infringe the jointly owned copyright in the Draft. Unfortunately the judge did not venture an opinion on the legal position of UCT (Afro-Leo suggests that this might be contractual or otherwise governed by legal provisions relating to works created under employment conditions, if relevant). However, it is a useful judgement for determining criteria for joint ownership in collaborative works, particularly in situations where one of the collaborators does not actually do any work on the final piece in which he/she claims copyright but was apparently intimately involved in the work up to that point. The analysis brings into play the tension between ideas and their expression and when copyright begins to exist and then, who then owns it. The Desai J held as follows:

"In between these two situations [the simple idea & the literary/artistic expression] there are a variety of scenarios where it would be unwise to focus exclusively on contributions to the physical expressions of the work. One such case is where two persons agree they will research and co-author an article. The ideas are quite obviously more important to the collaborators if the article is on a scientific topic. If they research and settle on the ideas to be recorded and it is left to one of them to produce a draft, there seems to be no reason why they should not be recognised as having jointly "made" or "created" the draft.

Where the ideas to be recorded are the product of collaborative endeavour and the one has undertaken the physical recording of the ideas the collaborators could properly be regarded as having jointly "made" or "created" the work. What distinguishes this type of case from the situation where it is said that there is no copyright in ideas is that there is collaboration from the outset and the contributing of ideas does not occur in vacuo (in an a vacuum) but is directed towards the creation of a literary work."

The Judge then held that the use in the Article of the reproduced text infringed the copyright in the Draft held jointly and therefore Ramesar's consent for such reproduction was indeed required. As almost the entire Draft had been copied in the Article Peter-Ross was not entitled to a declarator that she was the owner of the copyright in the Article. "...if it is accepted that the Draft is a "literary work" and the reproduced text in the Article is simply a copying thereof, it is sufficient to preserve the first respondent's [Ramesar] status as co-author of the reproduced text....the Article was the end product of the collaboration to which the parties had committed themselves in their agreement." Desai J then held that collaborators were co-authors not only of the reproduced text but also the additional text (which could not be regarded as something two which Peter-Ross had exclusively contributed), and thus the entire Article.