Copyright is a right which enables creators of literary and artistic works – such as writers, artists, painters, musicians, computer and software developers – to receive recognition for their creative works and derive economic benefits from the works. This right entitles creators to authorise or prohibit the use of their works by others. The author of a copyright work is, therefore, the person who creates the work. This is significant because – unless the author created the work in the course of their employment – they own the work and have the right to decide how it is commercialized; and ultimately, the right to prohibit dealings in the work without their consent.
Occasionally, two or more individuals collaborate to create a potentially copyright protectable literary, artistic, dramatic or musical work. Where more than one person creates a work, it can be deemed a work of ‘joint authorship’ and each individual has the same rights as a sole author would, depending on their arrangement. Establishing joint authorship can, however, be tricky and requires that appropriate mechanisms are adopted to avoid such situations.
A recent case brings to light issues on joint authorship, and this article examines the regulation of joint authorship in copyright in Ghana.
Generally, a work of joint authorship is a copyright work produced through the collaboration of two or more authors, where each author’s contribution is not distinct from that of the other author(s). Consequently, co-authors are deemed to own the work’s copyright jointly and equally and have the right to exercise all the exclusive rights inherent in the joint work, unless agreed otherwise.
Review of a recent court case
The High Court case of Fred Kusim Awindaogo v. Martin Luther Kpebu & Anor (‘the Case’) sets out the framework for the joint authorship test. The court held that joint authorship under Ghanaian law is “a work created by two or more authors in collaboration, in which the individual contributions are indistinguishable from each other and thus the final manuscript is a work of joint authorship”. This case involved the writing and publication of a book titled “Annotated Evidence Law of Ghana” (‘the Book’) by Fred Kusim Awindaogo and Martin Luther Kpebu pursuant to an “Author Collaboration Agreement (‘the Agreement’). Martin Kpebu sought credit to the final work and claimed sole authorship and copyright of the Book on the basis that he had to re-write the case briefs and the final draft. Fred claimed that he conceived the idea of writing the Book and contributed to the Book in accordance with the Agreement.
Legal framework for joint authorship in Ghana
Allocating authorship in respect of collaborative work in copyright is important as authorship gives copyright ownership in creative work. The allocation of authorship in respect of collaborative copyright works in Ghana is governed by section 1 of the Copyright Act, 2005 (as amended), which provides that an author, co-author or joint author of literary, artistic, musical, audio-visual work, etc. is entitled to copyright and protection afforded to that work under the Act. Section 76, the interpretation section of the Act, defines an “author” as “a person who creates a work…” A “co- author” is not defined by the Act, but it provides that the “work of joint authorship means a work created by two or more authors in collaboration, in which the individual contributions are indistinguishable from each other”.
The definition of co-author states the “joint authorship test”. The elements of joint authorship are collaboration, authorship, contribution, and non-distinctness of contribution. The court’s decision was based on the joint authorship test.
The joint authorship test
In deciding if an individual is a joint author of a work, the joint authorship test requires the following:
A work of joint authorship is a work produced by the collaboration of the individuals. Collaboration arises where individuals jointly undertake to create a work with a common purpose and produce the work together.
In the Case, the court noted that the parties used the word “co-authors” in the Agreement, which is not defined in the Act. However, the reasoning was that the use of “collaboration” and the general text of the Agreement, including the fact that they agreed to write the Book together with the copyright being in their joint names, confirms that the work is one of joint ownership. The court stated that Martin’s argument of being the sole author of the Book on the basis that he re-wrote the case briefs written by Fred does not change the understanding in the Agreement. The court relied on the principle that re-writing and correcting someone’s original text does not make one an author.
Following from the earlier point, collaboration largely depends on the intention of the parties to jointly create the work.
A person must have contributed a significant amount of the skill that was involved in the creation of the work to be considered a co-author. The concept of an author for a literary work may include an individual involved in creating or gathering together the detailed concepts which are then recorded in the writing. Consequently, establishing authorship in a literary work would include contributing to the storyline and relevant information.
In the Case, the court held that the Plaintiff is a joint author based on the following factors:
- the Plaintiff conceived the idea of writing the Book;
- designed the structure and scheme for the Book and;
- contributed sufficient originality and expression to the Book.
Not only is contribution required as indicated earlier, but a person must have contributed elements expressing their own intellectual creation which involves the exercise of free, creative and expressive choices in producing the work.
The court, in determining if the parties mutually intended and agreed that each co-author’s contribution was a part of an indistinguishable collective effort of a team based on Section 76 of the Act, concluded that to establish joint authorship, a person must prove the following:
- that he made a copyrightable contribution to the final work and;
- that the parties intended that their various contributions be merged into a unitary whole.
The court was of the view that the parties mutually intended and agreed that each co-author’s contribution was to be merged into a unitary whole and indistinguishable from the collective work. Consequently, the Plaintiff contributed significant and sufficient originality and expression to claim joint-authorship of the Book.
- Non-distinctness of contribution
In establishing joint-authorship, the contribution of a joint-author must not be distinct. The court, in determining whether the works between the parties can be distinguished, stated that the Book was prepared by both parties with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. Consequently, the final manuscript is a work of joint authorship.
Drafting a joint-authorship agreement
A prime lesson from the Case is the importance of entering into an agreement to avoid the complexities of joint-authorship. A written contract which contains relevant terms, including the following, at the outset can help prevent major conflicts:
- Credits – How will the co-creators be credited when the work is concluded? Will all names be listed? If so, in what order and with what titles? Will this same listing remain in effect even if one co-creator sells or licenses his or her rights? This must be considered by the parties.
- Royalties – How will money be allocated between the co-creators? Will revenue be split equally or otherwise. This must be clearly set out.
- Costs – How will costs be allocated between the co-creators? If you are writing a book, for instance, who will hire researchers? Will costs be split equally, or in some other way – for example, dependent upon each creator’s resources?
- Sale of rights: What if one co-creator eventually wants to sell his or her rights in the work? Must the other co-creators approve the potential purchaser, and/or do the other co-creators have the right of first refusal to purchase those rights? This determination must be catered for.
Depending on the specific situation and the nature of your creative work, there might be other considerations to include in the contract. But these should serve as a starting point to begin the negotiation process.
The judgment provides a helpful analysis on the law of joint-authorship and sets out the principles which must be present to establish joint authorship and the protection of joint authors.
By all means, collaborative creative works must be encouraged as two or more individuals use their talents to create copyright works for their mutual benefits and society. However, as in all human relations and collaborations, before getting creative together, co-authors must ensure protection of their copyright as co-authors by obtaining professional advice to help them enter into a valid contract with terms that protect each party.
*Vera Owusu Osei is a Partner with the Intellectual Property, Telecommunications & Technology Practice Group of AB & David Africa. She is based in the Accra office and has over 18 years of experience in assisting local and international clients on brand protection and IPRs across sub-Saharan Africa. Vera is also a Tutorial Master at the Ghana School of Law.