Copyright and Collective Authorship
Many scholars have suggested that current copyright law is ill equipped to the challenges of determining the authorship of collaborative work. This thesis analyses four case studies of large scale collaboration (Wikipedia, Indigenous art, scientific collaborations and film) in order to consider how best to determine the authorship of the creative works that they produce for the purposes of copyright law. Current scholarship and much of the case law has tended to favour a restrictive approach to the grant of joint authorship status, in order to minimise the number of potential authors of a work. This is motivated by instrumental/pragmatic concerns related to the ease of exploiting a copyright work. As joint authors are often joint first owners of copyright, proponents of this approach fear that a minor contributor might cause hold up problems by refusing to consent to licence or assign their copyright interest. This thesis argues that an instrumental/pragmatic approach to the application of the joint authorship test is undesirable, because it distances the test both from the creativity reality of collective authorship and from copyright's notion of the author. In addition, the instrumental/pragmatic approach relies upon assumptions about creators, the creative process and the exploitation of creative works which are not borne out in the case studies. Building on the insights from the four case studies, the thesis argues that the best approach to applying the joint authorship test to works of collective authorship is one that is inclusive (of all those who have made a more than de minimis contribution of creative choices to the protected expression) and contextual (in that it takes the context of creativity into account) In coming to this conclusion the thesis also offers broader lessons about the nature of authorship and the ongoing relevance of copyright law standards for the regulation of collaborative creativity.