In today's modern world, Intellectual Property (IP) rights have gained immense popularity. With the fast pace and digitization, the probability and possibility of stealing someone else's ideas and creative work have dramatically risen. There is therefore a need to protect Intellectual Property as any other property. The copyright laws in the UK are governed and regulated by the Copyright, Designs and Patents Act, 1988.

Copyright is a legal right given to the creators for their artistic work such as literary work, musicals, films, photographs, dramatic work, computer software, paintings, etc. These are creative rights, which gives only the creators i.e. 'Authors' of work the exclusive right to use it commercially and it prohibits others from unauthorized duplication or use.

In the case of Kogan v. Martin, a very prudent question and concern was raised with regards to authorship and authorial credit that ought to be recognized even for the ones with limited but crucial contribution. The case was decided at the first instance in 2017 by the trial court which was considered to be highly dissatisfactory, leading to an introduction of a new framework and a Joint Authorship Test by the Court of Appeals in 2019 for determining authorship especially in collaborative copyright works.

It can be argued that there are a number of creative works that requires collective efforts, wherein people pitch in their expertise from their scope of work, knowledge and help to shape up the final product. In such cases it becomes difficult to ascertain as to which contributor contributed the most or who shall be entitled to be called as the author of the work.

In this essay I will discuss and argue that how the aforesaid new framework and test is an absolute necessity today when it comes to acknowledging and recognizing the qualitative contribution made by different contributors which is often considered to be a grey area. I will do this in the following way – firstly, by understanding the unjust assessment of the joint authorship. Secondly, by arguing how the new approach for joint authorship is a better approach than the traditional one. Thirdly, discussing its advantages. Fourthly, by outlining that the new approach was a clear necessity to promote creativity.

Assessment Of Joint Authorship:

In the case of Kogan v. Martin, the dispute concerned the screenplay written for the film Florence Foster Jenkins. Martin is a professional writer and Kogan is a professional opera singer and occasional writer of books.[1] The parties were involved in a romantic relationship and lived together for more than two years, during this time they formulated the story for the film, they also worked together on the first drafts of its screenplay.[2] On film release only Mr. Martin received writing credit for the film.[3]

In this case, it was observed that the Court adopted quite a narrow approach and short-cuts in assessing the authorship of work. The judge based his judgment on a distinction between the primary skills required to create a copyright work and ancillary secondary skills.[4] One could argue that Court failed to undertake finding of crucial facts about the value and weightage of contribution brought on-board by each contributor individually. It can be rightly said that the trial court initiated its assessment from the wrong aspect altogether which led to further errors of law and decisions.

Depending upon the nature of work, most of the creative works are accomplished in phases/in parts and requires continuous alterations, additions, editing until the final piece is ready. Similarly, in case of Kogan v. Martin several drafts were worked upon by the parties collectively. They collaborated and poured their expertise in these preliminary drafts which formed the very foundation of the final screenplay.

Therefore the approach of the trial court was rather harsh and callous, as they conveniently overlooked and disregarded the plaintiff's contribution indifferently. Prior to this new framework, it can be seen that the decisions were quite biased based on incorrect method of assessment. Often its observed that dominant parties are more likely to protect their own interest while ignoring the value added by minor contributors and thereby, exploiting the minor contributors.[5]

Such constricted approach could only harm the future of collaborative endeavours as people may get sceptical in working together where there may be a possibility of excluding them at a later stage.

Approach Of New Framework:

There have been multiple apprehensions with regards to the suitability of this new-approach as this has given birth to fear of wrongful claims. Many producers, artists and scholars have opposed this new-approach as they fear that any person even with minimalist contribution could easily claim to be a joint author post this judgment. This may cause major turbulence in the world of copyrights. However, one could argue that qualitative factors will always remain an irreplaceable factor in assessing the authorship for copyright work.[6]

The Joint authorship test as brought forward by the Court of Appeals is a sound approach and it brings out the essence of section 10 of the Act i.e. Work of Joint Authorship which elucidate that it is a work produced by collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author/s[7]. It is an approach that takes into consideration the application of copyright principles and focuses on its four important limbs:

• Collaboration
• Contribution
• Authorship
• Non-Distinctness

The aforesaid limbs play a vital role in assessing the true nature of contribution contributed by each contributor.

They are discussed briefly below:

• Collaboration and Contribution:
  When evaluating the contribution of each contributor, it becomes a foremost requirement to understand the nature of relationship among the authors. If the relationship is that of an employer and an employee, where there are well-established terms and conditions, the interest of the author is secured against unlawful claims. As specified in S.11 of the Act, which specifies that the employer is the first owner of any copyright in the work, subject to any agreement to contrary[8].
  
  However, as observed in the aforesaid case, the relationship between the parties was such that it did not give rise to any formality to maintain any documentary evidence to showcase their mutual-understanding with regards to the degree of contribution made by each of them and how they would acknowledge their contribution post completion of work. Such an informal setting often makes it challenging to assess the collaboration.
  
  There are two approaches to analyze collaborative input:
  
  1. Treating each draft as a separate copyright work and assessing only the original skill and labour in the relevant draft;
  2. Treating the work holistically, looking at the totality of the skill and labour involved in producing it.[9]
  As mentioned earlier Kogan actively participated and contributed in the preliminary drafts but nothing in the final draft, that itself shows the drawback here that rather than looking at the work holistically the trial judge opted to consider the final screenplay separately. Kogan had already delivered the substantial part required for the final screenplay, such as characterisation, musical aspects, thereby contributing in its very foundation.
  
  The judge based his judgment on the rule of ultimate arbiter i.e. one with the final say, which was highly inadequate. It is unfair to evaluate on the basis of who wrote or had authority over the final screenplay. The collaboration could have a number of possibilities where one undertakes the responsibility of brain storming, ideas, plots while the other can put the same ideas on paper. It still constitutes a collaboration irrespective of who writes it on the paper ultimately. It can be argued that this amounts to be an inaccurate approach as it harms and undermines the efforts put in by other contributors.
  
  Merely relying on the quantitative aspect may not result in rightful and lawful decisions. Therefore, irrespective of the size/quantity of work, prime focus should be on its significance of contribution that moulds and shapes the final piece. A similar stand was taken by the Court in the case of Bamgboye v. Reed, wherein the Court stated that the quantum of contribution has no effect on claim for joint authorship.[10]
  
  It is pertinent to note that it is not necessary to have equal share of contribution in the work. It can always be apportioned in accordance to their respective contribution. The key requirement is to recognize the creative contribution made by all.
   
• Authorship and Non-Distinctness:
  Non-distinctness is when it's difficult to work out the individual contribution. The nature of contribution and collaboration is such that its blended in a way that it blurs the line of distinction. Authorship is the right for all those contributing significant aspects, the quality of work are worth the praise and shall not be neglected on any account.
  
  For instance, if A decides to write a version of Mahabharata (Sanskrit Epic of Ancient India) for kids in a simplified manner, derived from an already-existing work though without the collaboration with the first author, this could be sole authorship based on sufficient originality and may not be considered to be joint authorship.
  
  However, if the same is done in collaboration by A and B together, brainstorming together on how to simplify and present the idea to the younger generation, how to make it relatable, maybe illustrating pictures to keep the kids' engaged and interested. This entails collaboration exists, A and B have worked together to achieve the end result and that they have jointly authored.

Advantages Of New Approach:

It can be rightly said that the denial of recognition of an individual's hard-work and contribution would only deter and discourage the capability, need and desire to work in a collaborative fashion. The new approach could foster and encourage creativity in the society in the following manner:

1. Promotion Of Creativity:
   The adoption of this new approach would encourage people to come together and create a number of artistic works collectively, contribute and channelise their talents from their scope of knowledge and expertise for an astounding outcome.
    
2. Recognition:
   As long as the contribution is substantial and is above the trivial contribution, it deserves to be recognized and celebrated even if it is on a pro-rata basis. It should be a goal to ensure that significant contributions do not go unnoticed. It would protect the interests of minor contributors and avoid their exploitation.
    
3. Put An End To Fear Of Collaboration:
   Often people fear to associate their artistic, intellectual inputs with that of others because of the uncertainty of their recognition and acknowledgement. This will open endless opportunities and the world will be gifted with talent in abundance.

Therefore, establishing the facts on the basis of the new framework would simplify the determination of authorship, especially in cases of collective endeavours.

Conclusion:
To conclude, it can rightly be said that the adoption of new framework and the test would prove to be a game-changer. The Court's nuanced approach attempts to cover all the necessary grounds to ensure that the aforesaid test would effectively analyse the true nature, degree, quantity as well as quality of contribution to the creative work.

It helps in assessing the collaborative creative process and determines the true author/s. Thus, it can be rightly said that its introduction was a necessity to secure the interests of all significant contributors.

The new-approach takes an effort to protect the interest of minor yet significant contributors in the field of creative intellectual property. It would boosts the creativity without fearing that their contribution would go unnoticed. This would ensure and promote a wide range of creative collaborations even if it involves recognition on pro-rata basis. In a nutshell, it would be a great tool to avoid unfair decisions in the creative line of business. Although, its practicality and applicability could be gauged with time, it would be prudent for the judiciary to scrutinize its effectiveness consistently.

Bibliography:
Books:

1. Bently, Sherman, Gangjee and Johnson, Intellectual Property Law (5th ed, 2018)

Websites:

1. https://www.casemine.com
2. https://uk.westlaw.com
3. https://onlinelibrary.wiley.com
4. https://onlinelibrary-wiley-com.ezproxy.lib.gla.ac.uk
5. https://assets.publishing.service.gov.uk/
6. http://copyrightblog.kluweriplaw.com
7. https://ipkitten.blogspot.com

Cases:

1. Martin v Kogan [2019] EWCA Civ 1645
2. Bamgboye & Anor. v. Reed & Ors. [2002] EWHC 2922 (QB)
3. Infopaq International v. Danske Dagblades Forening [2009] ECDR 16

Statute:

1. Copyrights, Patents and Designs Act, 1988

End-Notes:

1. http://copyrightblog.kluweriplaw.com
2. https://onlinelibrary-wiley-com.ezproxy.lib.gla.ac.uk/
3. http://copyrightblog.kluweriplaw.com
4. https://ipkitten.blogspot.com/2019/10/guest-post-martin-v-kogan-court-of.html
5. https://onlinelibrary.wiley.com/doi/full/10.1111/1468-2230.12538
6. https://onlinelibrary-wiley-com.ezproxy.lib.gla.ac.uk/doi/pdfdirect/10.1111/1468-2230.12538
7. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/957583/Copyright-designs-and-patents-act-1988.pdf
8. Copyrights, Patents and Designs Act, 1988
9. https://uk.westlaw.com/Document/
10. https://www.casemine.com/judgement/uk/5a8ff76960d03e7f57eac3b0