Copyright and Collective Authorship: Locating the Authors of Collaborative Work

"10 Simone's approach is reminiscent of Jessica Silbey's work11 - having conducted an empirical study of various participants12 in creative and innovative industries, to situate creators' motivations in relation to the utilitarian objective of intellectual property to incentivize creation and innovation.13 Silbey, and to some extent Simone, apply the insights derived from their studies of creative communities to challenge the extent to which copyright (intellectual property) is necessary to incent authors to create.14 Silbey concludes that misalignments between intellectual property laws and the needs and aspirations of creators and innovators are desirable to some extent, but she also calls for some improvements of the law.15 Simone applies the insights derived from the case studies to rehabilitate the concept of (joint) authorship through an inclusive and contextual approach, sorting out what (often overlooked) contributions should count within the objectives of copyright law. The book focuses mainly on U.K. copyright law and how it addresses concepts of (joint) authorship, with an incursion in Australian law regarding its treatment of Australian indigenous art.16 As such, the analysis the book provides is relevant to Canadian copyright law, under which the basic conception of (joint) authorship bears similarity to U.K. copyright law.17 As recommendations are made in the context of Canada's ongoing copyright law reform to look into the adequate protection of indigenous traditional cultural expressions,18 the book is particularly relevant for its detailed discussion on the interaction between copyright law and indigenous traditional cultural expressions.19 On the law's exigencies surrounding authorship, despite uncertain contours, Simone identifies a "stable core" pointing to "the creator of the protected expression,"20 and argues that authorship requires more than de minimis contribution of creative choices or intellectual input to the protected expression.21 Taking a close look at the requirements of joint authorship,22 namely that contributors (i) act in pursuance of some collaboration or common design (ii) make a contribution that is not distinct, that is significant and that is of the right kind, Simone makes three important observations that highlight the strengths and deficiencies of the legal conception of joint authorship when applied to large groups of collaborators.23 First, the test is heavily fact-driven, which, in itself, is a strength that allows flexibility in the test's application to different creative processes and contexts.24 Second, Simone notices a restrictive approach in the application of the joint authorship test that limits the number of individuals qualifying as authors to one or a few dominant creators.25 Simone suggests that this restrictive trend to joint authorship leans toward imposing a higher standard of authorship for joint works than for single-author works. [...]higher standard for joint authorship is not justified by the CDPA.26 Simone attributes this tendency to a pragmatic instrumental approach adopted by courts where it is deemed more desirable to limit the number of authors in collaborative works.27 This pragmatic instrumental approach is disjointed from the core meaning of authorship in copyright law, i.e., contribution(s) of creative choices to the protected expression.28 Third, Simone notes a preoccupation of the judiciary to maintain aesthetic neutrality in its assessment of joint authorship.29 While some judicial restraint on the assessment of aesthetic merit is understandable given that copyright protection of a work does not depend on this criterion, it is difficult to ascertain (joint) authorship without some resort to aesthetic criteria, e.g, to determine what makes something literary, artistic, dramatic, etc? [...]Simone prescribes the adoption of a contextual approach to the joint authorship test by accounting for the social norms governing authorial groups to assess questions of facts in the test.39 This said, not all social norms are relevant to this exercise and resort thereto should be restricted to social norms based on their certainty, representativeness and policy implications.40 Resort to social norms is particularly important for the requirement of collaboration or common design, which should rely on the shared assumptions of the creators.41 Particularly relevant to Canada where case law diverges on the requirement of intention to be joint authors,42 Simone notes that while

Num Pages: 203-213 Place: Toronto, Canada Publisher: HAB Press Limited Section: BOOK REVIEW