Joint Copyright - Boghossian v IOP Publishing

By Taner Yildirim (The National Institute of Standards and Technology - NIST) -  Public Domain, 

Jane Lambert

Intellectual Property Enterprise Court (HH Judge Melissa Clarke) Boghossian v IOP Publishing Ltd.  [2025] EWHC 3317 (IPEC) (17 Dec 2025)

This was an action for copyright infringement brought by  Ardemis Boghossian ("Prof Boghossian") against IOP Publishing Limited ("IOP"), the publishing arm of the Institute of Physics and publisher of the journal Nanotechnology.  Prof Boghossian claimed joint ownership of the copyright in a paper which IOP published in Nanotechnology in the names of Dejan M Djokic ("Dr Djokic") and  Aranya Goswami ("Mr Goswami") on 23 Oct 2017.  IOP brought Part 20 proceedings against Dr. Djokic seeking an indemnity or contribution in case Prof Boghossian's claim succeeded.

The Parties

Prof Boghossian was a chemical engineer and research scientist. In 2015, she was an Assistant Professor in the Institute of Chemical Sciences and Engineering of the Ḗcole Polytechnique Fédérale de Lausanne in charge of the Nanobiotechnology Laboratory.

Dr Djokic obtained his doctorate from the Ḗcole Polytechnique in 2012 and carried out postdoctoral research at the University of Geneva on computational projects involving finite element analysis and modelling in applied physics. In April 2015 Prof Boghossian recruited him to assist on a research program she was leading on fluorescence in single-walled carbon nanotubes.

Prof Boghossian also hired Mr Goswami, who was reading for his first degree at a university in India, to assist as a summer intern on computational modelling.  He returned to India in August 2015, though he continued to work from home.

The Paper

Dr Djokic typed up and prepared a draft paper entitled "Quantum yield in polymer wrapped single walled carbon nanotubes" on 26 Aug 2015, which listed Dr Djokic, Mr Goswami and Prof Boghossian as authors even though there was a dispute as to how much Prof Boghossian contributed to the work. Dr Djokic said that Prof Boghossian did not contribute to the paper at all, while Prof Boghossian said that she made significant contributions to, inter alia, the structuring and content of the paper, and provided manuscript mark-ups of earlier drafts.

In January 2016, Dr Djokic wished to publish a modified version of the paper. Prof Boghossian objected, and the dispute was referred to the Ḗcole Polytechnique's ethics committee. The committee proposed mediation, which was conducted by Professor Benoit Deveaud, who was then head of the ethics committee, and his colleague, Susan Killias in April 2016.  Prof Boghossian and Dr Djokic agree that an agreement was reached about who would publish what academic papers, including the modified draft, and when, but they dispute the terms of that agreement.  Dr Djokic contended that Prof Boghossian had consented to publication of the work.  Prof Boghossian denied flatly that she had. 

In July 2017, Dr Djokic requested and obtained Ms Killiias's permission to publish the modified paper.  He submitted it to IOP, which accepted it.  The article appeared in the print and online editions of Nanotechnology on 23 Oct 2017.

Claim

Prof Boghossian alleged that she and Dr Djokic prepared collaboratively the text of the first draft of the paper describing their research in or about August 2015. She said that this "covered an analytical model and a computational model". She added that as the senior researcher, she was principally responsible for deciding the content of the draft paper, but the drafting of the actual text was a joint effort between her and Dr Djokic. She was not able to say which of the words were hers and which were Dr Djokic's. Accordingly, she concluded that the draft paper was a work of joint authorship within the meaning of s.10 (1) of the Copyright, Designs and Patents Act 1988 ("CDPA").

The Defence

Dr Djokic said that he wrote the draft paper entirely by himself and that Mr Goswami contributed later. Prof Boghossian had "zero input into either the submitted or published version of the draft".  He further alleged that he 

"single-handedly prepared and wrote the draft within the LaTeX computer program. Throughout the drafting process, I initiated the ideas, conducted data acquisition, analysis and interpretation, generated and compiled all figures and performed calculations, all utilizing EPFL's computer resources. Upon finalizing the Draft, I included the names of all my coworkers within the LNB group in good faith, a customary practice in academia to invite potential collaborators. My intention was to encourage their participation, allowing them to provide their own contributions or designs to the draft, or to potentially acquire, analyze or interpret additional data beneficial to the final manuscript. I entrusted my colleagues with the possibility of co-authorship, although they had not yet contributed at that stage."

The Issues

A case management conference took place before HH Judge Hacon on 14 Oct 2024.  He ordered 8 issues to be tried.   By the time the action came on for trial, these were reduced to:
(i) whether Prof Boghossian was a joint author of the draft paper; and if so 

(ii) whether Prof Boghossian consented to the publication of the paper under the terms of the mediation agreement.

Trial

The action and Part 20 claim came before Judge Melissa Clarke on 22 and 23 April 2023.  Prof Boghossian and IOC took part in the proceedings and were represented, but not Dr Djokic even though arrangements had been made for him to participate remotely from a court in Serbia.  By para [91] of her judgment in Boghossian v IOP Publishing Ltd [2025] EWHC 3317 (IPEC), which she handed down on 17 Dec 2025, the judge dismissed Dr Boghossian's claim against IOP for copyright infringement. In consequence of the dismissal of the claim against the publisher, the judge also dismissed IOP's Part 20 claim against Dr Djokic.

Issue 1: Whether Prof Boghossian was a Joint Author of the Draft Paper

Observing at para [28] of her judgment that there was no dispute between the parties on the law, the judge referred to s.1 (1), s.9 (1), s.10 (1), s.11 (1) and s.16 (1) of the CDPA and stated at para [33] that the burden was on Prof Boghossian to satisfy the court on the balance of probabilities that she was a joint author of the draft paper.  The judge recalled that Lord Justice Floyd had described joint authorship as "ultimately a unitary concept" at para [31] of his judgment in  Kogan v Martin [2019] EWCA Civ 1645, [2020] FSR 3. His lordship had added that that concept was one in which the 4 elements of joint authorship required by s.10 (1) of the Act must exist, namely collaboration, authorship, contribution and non-distinctness of contribution.  After discussing each of those elements and after reviewing the authorities, Lord Justice Floyd set out 11 principles of joint ownership in para [53] of his judgment in Kogan:

"1. A work of joint authorship is a work produced by the collaboration of all the people who created it.
2. There will be a collaboration where those people undertake jointly to create the work with a common design as to its general outline, and where they share the labour of working it out. The first task for the court in such a case is to determine the nature of the co-operation between the putative joint authors which resulted in the creation of the work.
3. Derivative works do not qualify. Works where one of the putative authors only provides editorial corrections or critique, but where there is no wider collaboration, do not qualify. Ad hoc suggestions of phrases or ideas where there is no wider collaboration do not qualify.
4. In determining whether there is a collaboration to create a literary or artistic work it is never enough to ask, 'who did the writing?'. Authors can collaborate to create a work in many different ways. For example there may be joint authorship if one person creates the plot and the other writes the words, or if either or both of these types of labour is shared.
5. Joint authors must be authors, in the sense that they must have contributed a significant amount of the skill which went into the creation of the work. Again, it is not correct to focus exclusively on who fixed the work in writing. The statutory concept of an author includes all those who created, selected or gathered together the detailed concepts or emotions which the words have fixed in writing.
6. Contributions which are not 'authorial' in the above sense do not count. What counts as an authorial contribution is acutely sensitive to the nature of the copyright work in question.
7. The question of what is enough of a contribution is to be judged by the Infopaq test, i.e. whether the putative joint author has contributed elements which expressed that person's own intellectual creation. The essence of that term is that the person in question must have exercised free and expressive choices. The more restrictive the choices the less likely it will be that they satisfy the test.
8. The contribution of a putative joint author must not be distinct.
9. There is no further requirement that the authors must have subjectively intended to create a work of joint authorship.
10. The fact that one of the authors has the final say on what goes into the work may have some relevance to whether there is a collaboration, but is not conclusive. The author with the final say must be given credit in deciding on the relative proportions of ownership, for the extra work involved in making those choices.
11. It follows that the respective shares of joint authors are not required to be equal, but can reflect, pro rata, the relative amounts of their contributions."

IOP cautioned the judge to take care in relation to scientific papers because the room for creative freedom of expression in an Infopaq sense can be limited or non-existent if they describe technical, scientific or mathematical concepts.  In Wright and others v BTC Core and others (Rev1) [2023] EWCA Civ 868, [2023] FSR 21, for example, Lord Justice Arnold said at para [55] of his judgment in that case that the requirement that a work be the author's own intellectual creation "is not satisfied where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom…" In the next paragraph, he cited the following passage from Case C-310/17 Levola Hengelo BV v Smilde Foods BV EU: C:2018:899, [2018] EUECJ C-310/17, [2019] ECDR 2, [2018] Bus LR 2442, [2018] WLR(D) 696:

"39. Under Article 2 (1) of the Berne Convention, literary and artistic works include every production in the literary, scientific and artistic domain, whatever the mode or form of its expression may be. Moreover, in accordance with Article 2 of the WIPO Copyright Treaty and Article 9 (2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights,... which also forms part of the EU legal order..., copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such....".

Judge Melissa Clarke also mentioned Baigent v Random House Group Ltd [2007] EWCA Civ 247, [2008] EMLR 7, in which the claimant, who had published a non-fiction book, The Holy Blood and the Holy Grail ("HBHG"), claimed that The Da Vinci Code had infringed his copyright by copying 15 elements of his central theme. Lord Justice Mummery said at para [156] of his judgment, in the context of a discussion which had begun at para [153] about whether the central theme and its elements were a substantial part of HBHG for the purposes of copyright infringement, that they were not. He described them at para [154] as "an assortment of items of historical fact and information, virtual history, events, incidents, theories, arguments and propositions". He noted at para [155] that 

"Of course it takes time, effort and skill to conduct historical research, to collect materials for a book, to decide what facts are established by the evidence and to formulate arguments, theories, hypotheses, propositions and conclusions. It does not, however, follow that the use of items of information fact and so on derived from the assembled material is, in itself, a "substantial part" of HBHG simply because it has taken time skill and effort to carry out the necessary research." 

He continued:

"[156] The literary copyright exists in HBHG by reason of the skill and labour expended by the claimants in the original composition and production of it and the original manner or form of expression of the results of their research period. Original expression includes not only the language in which the work is composed, but also the original selection, arrangement and compilation of the raw research material. It does not, however, extend to clothing information, facts, ideas, theories and themes with exclusive property rights, so as to enable the claimants to monopolise historical research or knowledge and prevent the legitimate use of historical and biographical material, theories propounded, general arguments deployed, or general hypotheses suggested (whether they are sound or not) or general themes written about." 

Judge Melissa Clarke noted at para [78] of her judgment that the claimant had submitted that the court could be satisfied that there was a collaboration between her and Dr Djokic in furtherance of a common design because:

i) Dr Djokic was hired into Prof Boghossian's team expressly to work on the computational and theoretical modelling of photophysical observations for the project that she was working on while her laboratory equipment setups were being constructed;

ii) The draft paper was a write-up of the team's work and the data the computational models had produced in relation to the interaction between a polymer and particles colliding with it, when wrapped around a single walled carbon nanotube at various angles;
iii) Dr Djokic had accepted that he had kept Prof Boghossian regularly updated on the progress of the work he was doing and that he received feedback from her on that work.

Her Honour observed at para [79] that the Court of Appeal had said in Martin v Kogan that it is not enough for collaboration to be made out merely by a joint undertaking to create the work with a common design as to its general outline.  There must also be the second limb described in para [53] of that case, that is to say that the putative joint author shares in the labour of working it out. As Lord Justice Floyd made clear, the first task for the court is to "determine the nature of the co-operation" between the putative joint authors which resulted in the creation of the work.

The judge considered each of the contributions to the work on which Prof. Boghossian relied.   The claimant described her emails to Dr Djokic as "contribution" at para [80] but conceded that they were "not the protectable expression of ideas."  Prof Boghossian also relied on:

(i)  initial work sketching out the structure of the paper, a description of each of the sections and transitions between the sections, as well as the relevant literature to be cited, on a whiteboard in her office;

(ii)  manuscript changes to hard copy drafts of the draft paper printed out and provided to her by Dr Djokic; and

(iii) being named as a co-author with Dr Djokic and Mr Goswami on a conference poster produced in September 2015, which included verbatim quotes from the draft paper.

Her Honour found the structure of the draft paper to be a simple one, an entirely orthodox structure for a scientific paper of its type, which did not allow for any room for creative freedom of expression in an Infopaq sense and so did not amount to an authorial contribution. The judge thought it was more likely than not that Prof Boghossian had placed manuscript amendments on one hard copy draft predating the 26 Aug 2015 draft paper, but she could not find on the balance of probabilities she did so more than once.  The poster did nothing to assist the judge to find that Prof Boghossian was a joint author.  She found that it was "standard practice" in academia for the main listed author of a draft paper to produce a draft with a proposed list of co-authors but that list could be amended if the proposed co-author failed to contribute to the work.

Issue 2:   Whether Prof Boghossian consented to the Publication of the Paper under the Terms of the Mediation Agreement

This issue would arise only if Prof Boghossian was a joint owner of the copyright in the paper. The judge did not accept the claimant's evidence on the terms of the mediation agreement. She held at para [118] of her judgment that even if she had found that Prof Boghossian was a joint author of the draft paper, she would have found that as a result of the agreement she reached with Dr Djokic in mediation, she consented to its publication in Nanotechnology.

Comment

Although the judge said that there was no dispute on the law, her judgment contains a useful review of the relevant authorities and applicable principles.    Particularly important is her discussion on the extent to which an author's creative freedom of expression can be limited or even excluded when describing technical, scientific or mathematical principles.  Anyone wishing to discuss this topic may call me on +44 (0)20 7404 5252 during UK office hours or send me a message through my contact form at any time. 

Further Reading 

Jane Lambert Joint Copyright - The Appeal in Martin and Another v Kogan 16 Oct 2019 My case note on Martin and another v Kogan [2019] EWCA Civ 1645 

Jane Lambert Joint Copyright - The Retrial in Martin and Another v Kogan 19 Jan 2021 My case note on Martin and another v Kogan [2021] EWHC 24 (Ch)