Peter-Ross v Ramesar and Another (2064/06) [2008] ZAWCHC 39; 2008 (4) SA 168 (C); 2008 BIP 306 (C) (14 March 2008)

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[2008] ZAWCHC 39
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Peter-Ross v Ramesar and Another (2064/06) [2008] ZAWCHC 39; 2008 (4) SA 168 (C); 2008 BIP 306 (C) (14 March 2008)

Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(Cape
of Good Hope Provincial Division)
Case
No:
2064/06
In
the matter between
ELIZABETH
PETER-ROSS
Applicant
and
RAJKUMAR
RAMESAR
First
Respondent
UNIVERSITY
OF CAPE TOWN
Second
Respondent
JUDGMENT
DELIVERED on 14 March 2008
DESAIJ:
This
is a rather unseemly wrangle between two academics at the University
of Cape Town
(“UCT"),
the
second respondent in these proceedings. The applicant, a consultant
psychiatrist, is a senior lecturer at the said university.
The
first respondent, a geneticist, is a professor and,
inter
alia,
the
director of the university's Human Genetics Research Unit.
In
1996 the division of Human Genetics at UCT launched a research
project entitled
n
The
Molecular Genetics of Bipolar Disorder".
First
respondent leads the project. It focuses on the connection between
bipolar psychiatric disorders and the genetic makeup
of the
patients. The applicant joined the project in 2001. Her principal
function was to explore first respondent's 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.
The
applicant
and the first respondent worked together in developing this idea
until early 2005. There is some dispute as to the nature
and extent
of their collaboration. I shall revert to this aspect in due course.
In any event, a draft article ("the first
draft") was
prepared by the applicant at the end of 2004. The paper dealt with
the research being done and both the applicant
and the first
respondent were cited as its authors.
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.
On
20 January 2006 the applicant informed the first respondent that an
article she had written had been submitted to and accepted
by
Molecular
Psychiatry (*MP"),
for
publication in March 2006. Though the first respondent did not see
the article at that stage, he believed that the article
embodied
work done by him and the applicant jointly. This belief was
communicated to a
Dr
Licinio
at
MP
and
the publication of the article was stopped.
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.
As
Mr O
Rogers SC,
who
appeared on behalf of the first respondent, has pointed out, the
declarator sought is singularly inappropriate for applicant's
said
purpose. The editors of
MP
require
clearance from
UCT
before
publishing the article. It is
UCT,
and
not this court, which is required to assess questions of appropriate
academic behaviour. An order by this court that the applicant
is the
owner of all copyright in and to the disputed article, would not
establish that she is legally entitled to publish the
article. If
the first respondent is a joint author of the first draft and the
MP
article
copies a significant portion of the said draft, the
MP
article
would unlawfully infringe the first respondent's joint copyright in
the first draft. (See
s23(l)
of
the Copyright Act 98 of1978
'("the
Act
")
read
with
s6
(
a
))-
Even if the said author is in law the owner of the copyright, it is
inconceivable that any reputable academic journal would
publish the
article in such circumstances. It accordingly seems that the order
sought by the applicant in these proceedings would
not have any
practical effect. This aione may constitute a sufficient basis for
exercising my discretion in favour of the first
respondent.
The
other respondent herein,
UCT,
has
elected to abide the decision of this court. However, prior to the
commencement of these proceedings, it set up a Committee
of Inquiry
with
Prof
S R Benatar
as
its chairperson. The committee concluded that though the applicant
was not guilty of scientific misconduct, her conduct in
relation to
the first respondent constituted
"ethical
misbehaviour in the research context."
With
regard to the authorship of the article, it found that first
respondent had met one of the requirements for authorship and
had
been deprived of the opportunity to make further contributions. The
findings of the committee are to be reviewed by a higher-level

committee. The editors were notified of the outcome of the
Benatar
Committee's
findings. With regard to the said findings I note first respondent's
comment that the applicant had not made the first
draft available to
the Committee, If it had been available, the
Benatar
Committee
may well have found the applicant guilty not merely of ethical
misbehaviour but of scientific misconduct in the strict
sense.
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:
"27
August2003:
..,
Whenever apologise...for note being a clinician ... without your
constant encouragement and probing questions and scientific
approach
and generosity of spirit I would not have travelled the long
distance we have covered thus far together.,, this is not
a distance
that you can travel
aloneit
is only when
we
combine our talents
and work and fly in the same direction that we will have the energy
to fly the long distance that our destiny calls us to travel”
16
September
2003:
'At last the name »- the title of our Nature article...
Bipolar
Spectrum Genome
'.
12
November2003:
l
You
know that I do not want to discuss the
n
S"
wordpe Schizophrenia]... but that we should be so lucky to have this
American group do this (preliminary) paper which
1 think will assist
us with compiling a subsection in
our
article
on founder population...'
17
May2004:
'lam continuing to work and to think about all aspects of the search
for psychiatric genes and the possible consequence underlying

pathophysiology... for our paper... perhaps with a title of...
identifying possible new candidate genes involved in psychiatric

disorders.'
11
On
8 November 2004 the applicant concluded an agreement with one
Karen
Adamson
in
respect of artwork for the article. The terms of the agreement are
recorded in a handwritten document signed by the applicant.
It
indicates that drawings are for an article by the applicant and the
first respondent. It also expressly records that the "art

belongs to both parties", namely the applicant and the first
respondent A similar handwritten agreement was concluded with
one
Angela
Ashley
on
11 November 2004 for editing the article. It is also signed by the
applicant and in express terms records that the article
is by the
applicant and the first respondent.
Further
corroboration for the contention that the research and the resultant
article and invention, if such, belonged to the applicant
and first
respondent jointly, is to be found in the Invention Disclosure Form
submitted to
UCT
Innovation.
Believing that their findings might be patentable, they jointly
approached - on applicant's own version - lawyers
attached to
UCT
Innovation
and were advised to complete the disclosure form. It indicates that
both the applicant and the first respondent are
the inventors. The
document was handed to
UCT
Innovation
by the applicant personally or, at least, with her consent.
The
first draft in fact bears the name of the first respondent as
co-author. In her founding papers no mention is made by the

applicant of the existence of any joint article. She conveys the
impression in her founding papers that first respondent's role
was
confined to discussions about testing her hypotheses empirically.
She also suggests that work on the article effectively
started only
after the relationship between the parties had allegedly broken
down. When faced with exposure, the applicant, in
her replying
papers, offers a somewhat contrived explanation for citing the first
respondent as co-author. She alleges that he
was cited as such
because of her admiration and respect for him and her belief that it
was a convention to include the name of
one's Head of Department. In
the same affidavit applicant concedes that "gift authorships"
are regarded in academia
as unethical and a practice to be
eliminated. It seems more likely, as
Rogers
SC
submitted,
that first respondent's name was included because applicant believed
that he had indeed made a material contribution.
It
seems that the first draft is reproduced almost in its entirety in
the
MP
article.
No original skill or labour went into the copying of the reproduced
text. The copied portions are set out in some detail
in first
respondent's supplementary answering affidavit. These allegations
are not disputed by the applicant in her reply. The
MP
article
also contains additional text which, according to the first
respondent, is the detailed technical description of the hypotheses

summarised and depicted schematically in the figures, which have not
been materially changed since last seen by him. First respondent

contends that it is the technical detail which occupied most of the
many hours he and the applicant spent together from 2001
onwards.
First
respondent does not allege that he did any work on the
MP
article.
His claim to co-authorship of the said article is not based on an
allegation that he wrote or dictated any part of the
article. It is
premised on the contention that the article contains the greater
part of the first draft to which he did contribute.
In this regard,
Mr
W
G Burger SC,
who
appeared on behalf of the applicant, argued that the first
respondent cannot point to a single sentence in the first draft

which he can claim to be his own nor is her able to say that he
formulated any significant portion of the draft which the applicant

took down as his scribe. According to
Burger
SC
first
respondent cannot be a joint author of the article as he did not
make any contribution to actually writing it. He argued
that there
is no copyright in ideas or suggestions, only in the material form
in which ideas are cast. It follows that a person
who merely makes
suggestions and criticisms cannot qualify as a joint author for
copyright purposes.
In
support of the aforegoing proposition,
Burger
SC
referred,
inter
alia,
to
Donoohue
v Allied
Newspapers
Ltd
F1937] 3 ALL EX S03(Ch).
In
this matter newspaper articles intended for consumption by
horse-racing enthusiasts were based upon the anecdotes recounted
by
a famous jockey. The evidence did not indicate that the jockey - the
Plaintiff - and the author of these articles were intended
to
feature as co-authors, or that the writer simply wrote down the
plaintiff's words. The court found that the plaintiff did
not have
the literary ability to write articles for any newspaper at ail and
presumably his ability to comment on the merits
of the resultant
work was rather limited. Though the claim to authorship or joint
authorship was rejected, the judge did so "rather
unwillingly".
Unlike
Donoghue,
supra,
first
respondent was not in the position of a non-writer conveying
information to an author. First respondent - unlike the applicant
-
has published extensively in South Africa and internationally.
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.
Rogers
SC
has
referred the court to a decision of the High Court of India in which
a different result to
Donoghue
was
reached. The case of
Heptulla
v
Orient Longman Ltd and Others
[1989] FSR 598
concerned
the authorship of the book
India
Wins Freedom.
One
Kabir
wrote
the book in English. It was based on recollections communicated to
him by one
Azad
in
Urdu.
Azad
was
able to read English- He worked through
Kabir's
draft
and suggested amendments. The court held that
Azad
and
Kabir
were
joint authors. In reaching his conclusion
Kirpal
J
remarked
as follows;
n
A
literary work consists of matter of material which is expressed in a
language and is written down; both the subject matter and
the
language are important It is difficult to comprehend, or to accept
that when two people agree to produce a work where one
provides the
material, on his own, and the other expresses the same in a language
which is presentable to the public then the
entire credit for such
an undertaking or literary work should go to the person who has
transcribed the thoughts of another, To
me it appears that if there
is intellectual contribution by two or mote persons, pursuant to a
pre-concerted joint design, to
the composition of a literary work
then those persons have to be regarded as joint authors."
The
other cases cited by applicant's counsel relate either to musical
works or stage plays and are clearly distinguishable on
their facts.
They do not support the sweeping proposition that in our law a
co-author's contribution can never be confined to
ideas as distinct
from expression. In fact, in
Brighton
v Jones
f2004] EWHC1157(ChJParkl
comments
in
passing as follows:
“
Copyright can
subsist in a story or a plot, so that if what happened in rehearsals
was that Miss Brighton determined whatthe plotof
the playwas to be
(orMiss Brighton andMiss Jones determined in collaboration what it
was to be), and then Miss Jones actually
wrote the words to give
effect to the plot, I can see that Miss Brighton might have been a
joint author."
Similarly
in
Cala
Homes
(South) Ltd and Others v Alfred McAlpine Homes East ltd
riS9Sl FSR SIS (Ch),
Laddie
J
held
that to have regard merely to
"who
pushed the pen
'ls
to
take too narrow a view of authorship.
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.
With
regard to copyright, the
MP
article
is a "literary work" as defined in the Act and the
graphics made at the end of the article appear to be "artistic

works". It is not disputed by the applicant that separate
copyright may rest in the first draft, even though the draft was
not
in a form ready for commercial exploitation (see;
Sweeney
v MacMiflan Publications Ltd
[2002]
RFC 35 at666-669).
The
Act defines joint authorship in section 1 as
“
a work
produced by the collaboration of two or more authors in which the
contribution of each author is not separate from the
contribution of
the other author or authors.”
An
author in the Act is
"the
person who first makes or creates the work''.
It
seems that joint authorship exists where two or more people
collaboratively "make" or "create" a work by
way
of contributions which are not separable.
Burger
SC
suggested
that in order to qualify as a joint author, the collaborators'
contribution must be "significant". The word
"significant"
is not used in the statutory definition of
"work
of joint authorship"
The
cases which have used the word appear to convey the idea that the
contribution should not be so trifling as to be disregarded
as
de
minimis.
In
any event, the authors of
Copinger
& Skone James on Copyright
14*
Edition
(para 4.4)
point
out that the contributions of co­authors need not be equivalent
or of the same kind and expressly recognise that there
can be joint
authorship
"where two
people make a contribution to the work's final expression, one being
the person actually responsible for committing
the worktopaper,
We
other providing an input to what is recorded."
A
person can "make" or "create" a work by
dictating to a scribe or, at the other end of the spectrum, a person

may verbally express an idea which another then embodies in a
written form. In the latter instance the person who does the writing

is the sole author. It is this type of case in which one finds
dicta
to
the effect that there is no copyright in ideas.
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.
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
but
is directed towards the creation of a literary work.
The
MP
article,
as I have already indicated, comprises the reproduced text plus the
additional text. These two components of the
MP
article
are clearly discernable. For the purposes of disposing of the
present application it is not necessary for me to decide
whether the
first respondent is the co-author of the whole of the
MP
article.
It is enough that he is the co-author of the reproduced text. The
use in the
MP
article
of the reproduced text infringed the copyright in the first draft
held jointly by the applicant and the first respondent
(see
section
23(1)
read
with
section
6(a)
of
the Act). Applicant's co-authorship of the first draft did not
entitle her to reproduce the draft without the first respondent's

consent.
Insofar
as it is suggested that applicant's sole copyright in the
MP
article
would be jeopardised only if the first draft formed a substantial or
significant part of the
MP
article,
such a proposition would not be correct- If copyright in the first
draft rests in the applicant and first respondent
as co-authors,
such copyright would be violated by the reproduction of a
substantial part of the first draft. It is irrelevant
whether the
copied text constituted a substantial part of the
MP
article
(see
s6(a)
read
with
sl(2A);
Brighton
andAno. VJones,
supra, para 63).
It
seems that almost the entire first draft has been copied in the
MP
article.
If this is correct, the applicant is not entitled to a declarator
that she is the owner of the copyright in the
MP
article.
Applicant's counsel endeavoured to meet this point by arguing that
the first respondent made no significant contribution
to the bulk of
the material contained in the
MP
article
and, in the circumstances, cannot be viewed as its co-author.
However, if it is accepted that the first draft is itself
a
"literary work" and the reproduced text in the
MP
article
is simply a copying thereof, it is sufficient to preserve the first
respondent's status as co-author of the reproduced
text.
As
Rogers
SC
has
correctly pointed out the reproduced text is hardly insignificant.
Apart from introducing the hypotheses and placing them
in their
scientific context, the reproduced text summarises the hypotheses
themselves. It also includes all the figures which
set out in dense
schematic format the scientific details of the hypotheses. The
MP
article
to a large extent merely reproduces in full narrative the detail
already contained in the figures.
It
is accordingly not necessary for me to decide whether the first
respondent is a co-author of the entire
MP
article.
I may, however, point out that the
MP
article
was the end-product of the collaboration to which the parties had
committed themselves in their agreement. The applicant
could not
change this by unilateral conduct. In any event, the
MP
article,
like the first draft is a work of collaboration. The additional
text, while textually separable from the reproduced text,
cannot be
regarded as something to which the applicant exclusively
contributed. The additional text does not represent new scientific

content but only a narrative recordal of what was clearly in the
figures contained in the first draft. The applicant and the
first
respondent are thus co-authors not only of the reproduced text but
also of the additional text, and thus of the whole
MP
article.
Assuming
that the applicant has copyright in the
MP
article,
Rogers
SC
has
argued that on ground of public policy I may decline to recognise
the copyright. The arguments advanced in this regard are
compelling
especially where they relate to the applicant's breach of the
agreement between the parties. However, in the light
of the
conclusion to which I come, it is unnecessary for me to deal with
this aspect any further.
In
the result, I am of the view that the applicant is not entitled to
an order that she has the sole copyright of the
MP
article.
The application is accordingly dismissed with costs, including those
occasioned by the enrolment of the matter on 10
and 24 March 2006.
DESAI,
J