Experimenter Requires Affixing His Name to the Scientific Paper as the First Author. Should the Court Support His Claim?

[Judgment Summary]

The experimenter’s contribution to the paper involved in the case mainly lies in the acquisition of experimental data (designing and implementing the experiment) and analysis (making charts and labeling). Among them, the acquisition of experimental data belongs to the discovery and recording of facts. In accordance with the rigorous requirements of science, the process of obtaining experimental data cannot have “innovative selection or arrangement” of the data; the data analysis mainly uses more general charts to record the analysis results, which also falls into to the discovery and recording of facts or the combination of facts and expressions. The expressions in this are simple and scientific expressions, and do not reachthe height of original expression in the sense of theCopyright Law of the People’s Republic of China. Such contributions do not belong to the labor for the creation of works according to the Copyright Law but belong to other contributions to academic achievements in the field of natural sciences.

[Case Review]

During Liu’s postgraduate study at the Shanghai Advanced Research Institute, Chinese Academy of Sciences (SARI), Li was his second instructor. Liu’s co-authored papers with Li and other people were published in a European chemical journal. At the time of publication, the sequence of authorship to the paper was Li as the first author and Liu the second. Liu filed a lawsuit with the court, believing that he contributed the most to the paper, and that Li violated promise for not affixing his name to the paper as the first author, which is an infringement of his right of authorship.

[Court Decision]

During the trial of first instance, Shanghai Pudong New Area People’s Court found that all the co-authors had reached an agreement on the sequence of authorship to the paper involved. As the main writer of the paper involved, Li undertook the major works of creation and was proper as the first author. The court ruled to dismiss all claims of Liu.

Duringthe trial of second instance, the Shanghai Intellectual Property Court found that Liu did not raise any objection to the sequence of authorship during the consultation ofopinions on the amendments to the paper involved, and the co-authors of the paper involved issued opinions in written form or testified in court to express no objection to the sequence of authorship to the paper.Therefore, the court of first instance presumed that the co-authors of the paperinvolved have reached an agreement on the sequence of authorship to the paper with factual basis. Even if the sequence of authorship to the paper is determined according to the labor paid to the creation of the work, Li, as the main writer of the paper involved, is the person who has paid the most labor to the creation of the paper and it’s proper for Li to affix his name to the paper as the first author. Liu’s contribution to the paper involved is mainly the acquisition and analysis of experimental data. None of these contributions belong to the labor for the creation of works according to the Copyright Law but belong to other contributions to academic achievements in the field of natural sciences. Liu’s contribution to the paper has been indicatedthrough his signature to the paper, and his rightofauthorshipwas not infringed. Therefore, the judgment of the first instance is upheld.

[Case Study]

This case involves the sequence of authorship to academic papers, which is a topic that the public is more likely to pay attention to and discuss. There are two main issues that need to be discussed in this case. One is whether a lawsuitprovoked by a dispute overthe sequence of authorship to the paper can be filed for infringement of the right of authorship. The other is whether the claim of the experimenter of determining the sequence of authorship based on different contributions made to the scientific paper has a legal basis.

1.Whether a lawsuit provoked by a dispute over the sequence of authorship to the paper can be filed for infringement of the right of authorship.

According to the Copyright Law of the People’s Republic of China: the right of authorship is the right to claim authorship to the work and to indicate the author’s identity. In the case where a work is created jointly by two or more co-authors, the authorship and the sequence of authorship are issues that all the co-authors care about.Among them, having their names affixed to or not involves the interest of the right of authorship under the Copyright Law of the People’s Republic of China. The sequence of authorship to the paper may involve indicating the status and contribution of each author in the entire creative team.In academic circles,the “first authors” are often mentioned,so arethe "corresponding authors" of academic papers in the field of natural sciences. These "authors" with qualifiers are often not the same as the termstipulated in the Copyright Law of the People’s Republic of Chinaas someone made original expressionstoa work.According to the practice in academic circles, the "corresponding author" or "first author" is often the person in charge of related subjects, and may not necessarily participate in the writing of academic papers. His contribution to academic papers mainly lies in proposing research directions, general ideas, and checking the final academic results. This kind of contribution belongs to the contribution of ideas and creativity, not the contribution of specific expression. Placing the name of the person in charge of these subjects in a special position or in the first place when an academic paper is published is a respect showed by the academic circles for the person’s thought contribution to research results. For academic research in the field of science and technology, in addition to thementors providing creative ideas and the specific writers, in order to form the final research results, a large number of long-term scientific experiments are required. Although these experimenters who specifically operate scientific experiments and record and analyze the experimental results do not necessarily participate in the writing of academic papers, they often also affix their name to the final published academic papers as authors. This authorship method also indicates the academic circles’ respect for theircontribution to research findings and records. It can be seen that the practice in academic circles plays an important role in the sequence of authorship to the paper. The authorship of academic papers in practice, especially those with a specific title or particular order, does not represent the interests of the right of authorship stipulated in theCopyright Law of the People’s Republic of China. Therefore, in a strict sense, when all authorsin a collaborative work have affixed their names to the workand then a dispute over the sequence of authorship to the paper rises, it does not involve the issue of infringement of the rights of authorship to identify the author, but only the disputes among various authorson their status or contribution in co-creation.

However, the authors who appealed to the people’s court to determine the sequence of authorship to the paper often fail to clearly understand the meaning of the right of authorship stipulated in the Copyright Law of the People’s Republic of China. The court must take into account the plain understanding of the common people about the right of authorship, andit’s not a favorable act for the court to refuse such trials on the grounds that such disputes are not an “infringement of the right of authorship."According to the Article 11 of theInterpretation of the Supreme People’s Court Concerning the Application of Laws in the Trial of Civil Disputes over Copyright, “Where a dispute arises from the sequence of authorship to a work, the people’s court shall handle the case according to the following principles: if there is any agreement concerning the sequence of authorship, such agreement shall apply; if there is no agreement, the sequence of authorship may be determined according to how much labor one had paid to the creation of the work or the sequence of the content of the work or the number and sequence of the strokes of the Chinese characters for the surnames of the authors, etc.”The above judicial interpretation clarifies that the court’s principle in the trial of disputes over the sequence of authorship to the papers:if there is any agreement, such agreement shall apply; if there is no agreement, it will be determined in accordance with practice or common methods in practice. This is actually requiring the court to resolve disputes over the sequence of authorship to the papers in the way of resolving contract disputesas the breach of contract and principle of good faith.

In this case, Liu only amended the author’s unit in hisauthorship part during the consultation ofopinions on the amendments to the paper involved, and did not propose correcting advice to the sequence of authorship to the paper. When contributing the paper to the journal, Li also retained Liu’s amendments to author’s unit in hisauthorship part. The final published paper was also the same as that of Liu’s amendments to the authorship part. Liu also failed to provide evidence to prove that he had clearly raised objections to the sequence of authorship to the paper afterwards until the lawsuit; combined with the fact that other co-authors of the paper involved do not object to the sequence of authorship to the paper, it’s sufficient to presume that in this case, the co-authors have reached agreement on the sequence of authorship before the publication of the paper.

2. Whether the claim of the experimenter of determining the sequence of authorship based on different contributions made to the scientific paper has a legal basis.

Liu claims that his contribution to the paper involved in the case mainly lies in the acquisition of experimental data (designing and implementing the experiment) and analysis (making charts and labeling). Among them, the acquisition of experimental data belongs to the discovery and recording of facts. In accordance with the rigorous requirements of science, the process of obtaining experimental data cannot have “innovative selection or arrangement” of the data; the data analysis mainly uses more general charts to record the analysis results, which also falls into to the discovery and recording of facts or the combination of facts and expressions. The expressions in this are simple and scientific expressions, and do not reachthe height of original expression in the sense of the Copyright Law of the People’s Republic of China. Such contributions do not belong to the labor for the creation of works according to the Copyright Law but belong to other contributions to academic achievements in the field of natural sciences.Therefore, even if the sequence of authorship to the paper is determined in accordance with the labor paid to create a work in accordance with relevant judicial interpretations, as the main writer of the paper involved, Li undertook the major works of creation and was proper as the first author. It is worth pointing out that the “laborpaid to create a work” in relevant judicial interpretations emphasizes the contribution to the specific expression of works, and it is not appropriate to expand the understanding to include all preparations for creative works, that is, the contributions to the creation in a broad sense. The contribution of scientific research is far from being able to judge from the amount or content of the final text-based research results. For example, although the finishing touches and inspirational discovery or summary may not be long in length space, their importance and contribution to the research are difficult to determine. To leave the issues that the academic circlescannot make decisions onwith the court obviously goes beyond the court’s ability to make a judgement.

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