(Cape of Good Hope Provincial Division)

In the matter between 

and

JUDGMENT DELIVERED on 14 March 2008

DESAIJ:

The working relationship between the applicant and the first respondent disintegrated thereafter. The breakdown in their relationship was precipitated by the fact that the applicant wanted to publish the hypotheses as soon as possible while the first respondent was reluctant to do so- He was of the view that more empirical evidence in support of the hypotheses had to be obtained before publication.

The applicant then launched this application with the stated purpose of achieving the publication of the aforementioned article. However, she seeks herein a declaratory order to the effect that she has the sole copyright in the article and its accompanying article. The first respondent resists the application principally on the basis that he is the joint author of the article. While he did not contribute to the written formulation of the article, first respondent contends that it is a product of scientific collaboration with the common intention of producing an article of joint authorship.

The facts and circumstances which give some idea of the nature of the relationship between the parties and the extent of their collaboration warrant noting.

First respondent was instrumental in causing applicant to be invited to join the project. Over the period 2001 to 2005 they spent "hundreds of hours" developing the hypotheses which lay at the heart of the research. They became increasingly excited at the revolutionary effect which their research might have on the classification and treatment of, and development of drugs for, a range of psychiatric disorders.

The hypotheses were developed jointly. Neither of them could have developed the hypotheses without the active participation of the other - the applicant as a psychiatrist and the first respondent as a geneticist.

Applicant and first respondent knew that for peer review purposes their research would have to be published in a leading medical journal or presented at a major international conference or both. According to first respondent it was applicant's responsibility to produce the draft of an article.
She would come to first respondent's office with a portion of the draft which would be debated at length. Their discussions often involved line-by-line scrutiny and revision of the draft. First respondent's inputs would be recorded on the draft. During this period the interaction between them took place both orally and by way of emails.

Several factors corroborate first respondent's contention that a co-authored article embodying the outcome of their research was envisaged by the parties.

The emails which passed between them graphically illustrate what was intended. I quote from a few of the emails from applicant to the first respondent to illustrate the point:

Quite patently he has the literary skills to draft scientific articles in his field of expertise. He was the senior figure in a scientific collaboration with the necessary skills to review and comment upon applicant's draft. Moreover from the outset an article of joint authorship was envisaged by the parties.

The proposition that in order to qualify him as a co-author the contribution of a collaborator has to relate to the form of the work rather than its intellectual content, is not always correct. Though there is no copyright in ideas, a literary work is most often a vehicle for ideas. Once ideas have been captured in words on paper the ideas are an important part of the literary work.

In this instance the first draft Is the product of agreed collaboration with a view to publishing a co-authored article embodying scientific hypotheses and research. It is a work in which the scientific content was of greater importance than literary expression, where the essence of the work is scientific, unlike a novel or a play, the precise mode of expression is of far lesser importance. The major contribution of both parties was in the realm of scientific ideas rather than literary formulation. Lesser expertise was required for the formal recording of these ideas. First respondent's contribution, however, was not limited to his substantial contribution to the scientific ideas embodied in the first draft. Through his critical review of the earlier drafts he also made a material contribution to the form of the said article.

The Act defines joint authorship in section 1 as

In between these two situations are a variety of scenarios where it would be unwise to focus exclusively on contributions to the physical expression 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.