Authorship and Joint Creation: Academic Convention and Standards Frank Lancaster UT Office of the General Counsel Presented at The University of Tennessee Martin March 12,

Introduction 2

What is a Copyright? A copyright is the legal right to control original expression – to exclude others from making copies (it is literally the “right” to make “copies”). A copyright owner has the exclusive rights (subject to specific exceptions) to: o Reproduction (Making Copies) o Performance and Display o Distribution (Publication) o Creation of Derivative works (Adaptation)  Example – turning a book into a movie 3

What Does Copyright Law Protect? Copyright protects expression – not facts or ideas What is protected is how you say it, not the substance of what you say (Ideas can be protected by patent law if novel, useful, and non-obvious) 4

Protectability Requires Originality Key to Protection: Originality Lenient standard  Independent Creation = Non-Copied  A Modicum of Creativity – “[T]he requisite level of creativity is extremely low.” Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991). 5

When Does Copyright Protection Start? A protectable expression is protected from the instant it is fixed in a tangible medium of expression = Recorded in some concrete way Registration with Copyright Office and Notice (© – the “C in a Circle”) are not required for protection 6

Joint Copyright Ownership 7

Who Owns the Copyright – Generally The copyright is the property of the author(s) who created the work Sometimes there is one author Sometimes people collaborate with each other to produce a copyrightable work o Classic example – music and lyrics to a song 8

Statutory Definition of “Joint Works” “A ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” – 17 U.S.C. § 101 9

“Joint Authors” “Joint Authors” are co-owners of the copyright in “Joint Works” o Being a “joint author” requires (1) a mutual intention to create a jointly-owned work and (2) contribution of something independently copyrightable 10

Legal Effect of Joint Copyright Ownership Each joint copyright holder has the rights of a copyright owner o Thus, each can use the work and authorize use by others without having to get the permission of the co-owner BUT, none of the co-owners can do anything that damages the other owners’ rights. Examples: o A co-owner cannot destroy the value of the work, such as by putting into the public domain o A co-owner cannot give an exclusive license to the work 11

Authorship Guidelines 12

Authorship Guidelines Vary By Discipline Medical and Scientific Community – Extensive and prescriptive Guidelines Humanities – Almost no published Guidelines 13

Basic Rule of Thumb “The commonly accepted guideline for authorship is that one must have substantially contributed to the development of the paper.” – Noble, “The Ethics of Authorship,” from the Journal Science ( gazine/previous_issues/articles/2001_03_30/nod oi ) gazine/previous_issues/articles/2001_03_30/nod oi

Influential Guidance from the International Committee of Medical Journal Editors Who Is an Author? The ICMJE recommends that authorship be based on the following 4 criteria: Substantial contributions to the conception or design of the work; or the acquisition, analysis, or interpretation of data for the work; AND Drafting the work or revising it critically for important intellectual content; AND Final approval of the version to be published; AND Agreement to be accountable for all aspects of the work in ensuring that questions related to the accuracy or integrity of any part of the work are appropriately investigated and resolved. 15

ICMJE Cite wse/roles-and-responsibilities/defining-the- role-of-authors-and-contributors.html wse/roles-and-responsibilities/defining-the- role-of-authors-and-contributors.html 16

Practical Suggestion Follow the “All I Really Need To Know I Learned in Kindergarten” Approach: o Ask yourself: Is leaving this person off the author list the right thing to do? How would I feel if I were that person? 17

Some Good Resources Wikipedia Article, “Academic Authorship,” o Seriously, it’s good – breaks it down by discipline, lots of links Kevin Strange, “Authorship: Why Not Just Toss a Coin,” Albert and Wager, “How To Handle Authorship Disputes,”

Authorship Disputes and Research Misconduct The University of Tennessee has a Research Misconduct Policy o ocs/Misconduct_Research_Service_2005.pdf ocs/Misconduct_Research_Service_2005.pdf Plagiarism (the appropriation of another person’s ideas, processes, results, or words without giving appropriate credit) is research misconduct. Non-plagiarism authorship disputes are generally viewed as not being covered by federal research misconduct rules 19

Authorship Disputes and Research Misconduct The Federal Office of Research Integrity says: “Past allegations [of research misconduct] have often involved disputes among former or current collaborators who participated jointly in the development or conduct of a research project, but who subsequently made independent use of the jointly developed concepts, methods, descriptive language, or other products of the joint effort. The ownership of the intellectual property in many of these situations is seldom clear, and the collaborative history among the scientists may support a presumption of implied consent for each of the collaborators to use their joint efforts. Although these disputes involve very important principles, we believe that these matters are best handled by the researchers and their institutions.” 69 Fed. Reg. 20,778, 20,780 column 3 (April 16, 2004) 20

Questions/Comments? 21