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 Table of Contents  
ORTHODONTICS AND BEYOND: INVITED ARTICLE
Year : 2015  |  Volume : 49  |  Issue : 3  |  Page : 173-176

Authorship: A legal perspective


Associate Professor, Department of Orthodontics, Government Dental College, Kottayam, Kerala, India

Date of Web Publication16-Sep-2015

Correspondence Address:
Elbe Peter
Department of Orthodontics, Government Dental College, Kottayam - 686 008, Kerala
India
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/0301-5742.165570

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How to cite this article:
Peter E. Authorship: A legal perspective. J Indian Orthod Soc 2015;49:173-6

How to cite this URL:
Peter E. Authorship: A legal perspective. J Indian Orthod Soc [serial online] 2015 [cited 2019 Apr 23];49:173-6. Available from: http://www.jios.in/text.asp?2015/49/3/173/165570

Good quality research and its publication is essential for the growth of all fields including orthodontics. It makes new knowledge known to the scientific community. Although the motivation for research and publication should be based on the quest for new knowledge, the "publish or perish" mantra creates a situation where many publications are out of a sense of compulsion. Present day importance to authorship is due to the prestige attached to number of publications, career advancement options, research funding and social recognition. The average number of authors on original articles in 1915 was one and increased to an average of 6 in 1985. [1] Every year more than 6 million scientific, medical articles are published out of which <15% of articles published on a particular topic is found useful. [2]

In India, the right of authorship is derived from The Indian Copy Right Act 1957. [3] The act provides for copyright protection to an original literary, dramatic, musical, and artistic works. The "expression" or "presentation of an idea" and not the idea itself in the form of textual, visual, audio, or a combination is amenable for protection. The word "literary" defined in section 2(o) of the act includes a dissertation. [4] The author who is the real creator of the work is the first owner of the copyright, but this, however, is subjected to exceptions as in the case of an employer. Most of the authorship issues arise when there is a joint contribution to the work as in an academic research process. The act also recognizes the position of co-authors to work.


  Orthodontic Research Scenario in India Top


Most of the original research publications in India are from postgraduate (PG) thesis or doctoral dissertations. The word thesis and dissertation are used interchangeably in most countries. They are submitted as partial fulfillment for obtaining a professional degree at master's or doctorate level. This consists of original findings to support or reject a stated hypothesis. The guide plays a key role in research process, and he/she is entrusted to supervise the work and their contribution, where a student is fresh to the specialty, is invaluable. The fiduciary relation between student and guide during studentship, where the paternalistic approach of a guide may create authorship issues in present day social situation, especially when the publication of thesis is done after course completion.

This article aims to analyze the position of authorship issue from a legal and moral standpoint.

Who is the owner of the thesis?

The owner of thesis or dissertation is the employer where the research was actually conducted. This is because of the facility to conduct research including diagnostic and treatment facility, the supply of sufficient patients/materials for data collection, funding, etc., are provided by the institution. Section 17 of the copyright act provides that author of a work shall be the first owner of copyright. [4] This creates some confusion as to the author (PG student/researcher) of the thesis to be the first owner of copyright. Section 17(c) provides for exception applicable in research situation, where in case of work made in the course of author's employment under a contract of service or apprenticeship, the employer shall in the absence of any agreement to the contrary be the first owner of the copyright. [5] The difference between a contract of service and contract for service is based on the extent of control exerted by the employer on the employee. The more control that can be exerted over an employee, the more it qualifies for contract of service and in such cases employer is the owner of copyright. In case of government institutions, the government is the owner of copyright (section 17d). [4] A university can reserve copyright if the university has such an Intellectual Property Right (IPR) policy.

Who is the author of the thesis?

Author of the thesis is the PG student or principal investigator [Flowchart 1]. He/she has an undisputed position as the first author of subsequent article generated out of thesis but may not have copyright of the thesis.



What is the role of a guide in thesis?

Without guide, no university will accept a thesis. This emphasizes the need for a guide. A faculty member to qualify for guide ship has to fulfill certain requirements laid down by university and Dental Council of India (DCI). It is he who monitors and supervises the work. This entitles him some moral rights on the thesis that is, right for co-authorship. Section 2(z) of the copyright act defines work of joint authorship. [4] The issue of joint authorship came before court in Najma Heptulla v. Orient Longman Ltd. here court concluded that the work "India Wins Freedom" was the product of active and close intellectual collaboration between Maulana Azad and Humayun Kabir. [6] Would a thesis have been possible without a guide? The answer to this would be a simple statement to ascertain the importance and role of a guide. He also holds joint responsibility for any flaw which has occurred in the study which may amount to research misconduct.

Is copyright registration mandatory for its enforcement?

No, when a matter is written and published copyright automatically sets in; there is no need for registration of copyright to make it enforceable. Registration does not confer any rights as is merely a prima facie proof of an entry in respect of the work in the copyright register.

What is the term of copyright?

The term of copyright in India is lifetime of the creator of copyright and 60 years there after his death. This should not be confused with authorship rights, which according to some is perpetual. Section 57 of the copyright act is the heart of the act in terms of special rights in authorship. This provides for even after assignment the author can claim authorship of the work and can restrain or claim damages in respect of any distortion, mutilation, modification, or other act in relation to the work which are prejudicial to his honor or reputation. This position was ascertained by Delhi High Court in Wiley Eastern Ltd., v. Indian Institute of Management case. [4] This section ensures the protection of moral rights of an author and language given to this section of the statute is of widest amplitude. In Australia, moral rights were introduced through copyright amendment (moral rights) act 2000 which provides even for seeking remedy if the work is used in a derogatory way which negatively impact on author's character or reputation. [7]

Who all are the authors of a scientific article generated from the thesis?

All who have substantially contributed to the research work has a right to be co-authors to the manuscript. The first author is most sought after authorship position in the medical literature as this is the most frequently quoted name in various articles. [8] Author of the thesis should be the first author of his work when published. The subsequent position can be ascertained based on the quantum of contribution and fulfillment of ICMJE criteria. Previously, there were instances where guide himself takes the first author position and as PG student or junior researcher, he accepts the position awarded by guide or head of the department. It is quite clear now; that first author should be the principal investigator, and he has every right for it. Middle authors are the ones in between who have contributed to the article and last author is usually head of the Department or head of the institution who may not have substantially contributed to the article per se. There is some gray area regarding the order of middle authors, some consider that second one should be the next most contributed author and so on. An interesting situation arises in Indian context when the student does not show any interest in writing it up as a research article. It has been suggested that in such cases the guide may provide a reasonable time for preparing the manuscript. [9] If still no response the guide can publish it keeping principal investigator as first author with his consent.

Can a gifted author escape from the liability if that article is found plagiarized or subjected to other misconduct?

No, the gifted author cannot escape from the liability as all authors should fulfill the ICMJE criteria to qualify for authorship. Copyright act does not recognize the position of gifted authorship. This practice of gifting authorship is most prevalent in medical publishing for easy acceptance in high impact journals. The Korean stem cell scandal is a clear example where a gifted author in vain, tried to deny his role in the study when authors were booked for research misconduct. [10]

How to handle ghost authorship?

Ghost authorship is a situation where one or more of the substantial contributor is omitted from the author's list. Be it intentional or unintentional, both qualify for authorship misconduct. A guide publishing a thesis excluding the PG student or vice versa entitles to the same remedy. The remedy provided in copyright act is same for any violation of copyright or any other rights (moral right) conferred under this act. The available remedies [Flowchart 2] can be classified as;

  • Nonjudicial remedies
  • Judicial remedies.




Nonjudicial remedies

These are the first and most often sought remedy in authorship issues; usually, the first person to be contacted when such an issue is recognized will be the journal editor. In proved misconduct, the editor can consider retraction of the article and place a ban on author based on the decision of the editorial team and retraction policy of the journal. There are many such articles retracted in the medical literature. [11] The editorial team should act like a quasi-judicial body and take steps to ensure natural justice by allowing time and opportunity to substantiate views of both parties.

The aggrieved can also approach professional bodies such as the DCI, university, and institution where the other party works for necessary action. The professional community should view this as a serious misconduct, and deterrent action should be taken against indulgers of such act.

Judicial remedies

Judicial remedies are obtained through a court of law. The aggrieved person can approach the district court of competent jurisdiction through a counsel by filing a complaint. The place to file a suit is where the complainant voluntarily resides or works (section 62). In case of a joint petition, it can be of the court jurisdiction where at least one is residing. Section 55 of the act provides for civil remedies. The remedy sought is an injunction (restrain from further violation and seize the issues) or claim damages (money compensation) or both. Once an injunction is obtained a copy may be served to the journal editor to take appropriate action upon the published matter. Section 63 provides for offenses related to infringement of copyright or other right conferred by the act. The quantum of violation and mental element (mens rea) will attract a punishment under this section which can be fine not <50,000 up to 2 lakh rupees or imprisonment not <6 months up to 3 years. On subsequent infringement, the penalty may be enhanced (section 63A). An appeal from District Court lies in High Court. Sending a person to jail due to authorship misconduct may seem to be a rare possibility, but the loss of reputation associated with involvement in such misconduct may be long lasting.

Publish or perish - need revisiting?

The pressure on academicians leads to various forms of scientific misconduct. Authorship is just one of them. Regular updates to maintain publication ethics and good methods of scientific writing need to be encouraged. [12] Scholarship does not protect against conflict which appears to be inherent in human nature. In-depth analysis of the provisions of Indian copyright act and the Research publication scenario in India reveal some areas of conflict especially between the legal right and moral rights. The ICMJE criteria as to the authorship issue strike a good balance regarding the role of co-authors in a study. Such division of labor is not well recognized by the law. When the owner of the work is institution/university and as long as it maintains the copyright of the thesis, copyright transfer should be from the head of the institution/university. A person does not have copyright (i.e. PG student, guide, and contributing authors) cannot transfer it also. It is the copyright that the authors of the article subsequently earn while preparing the manuscript from a thesis is transferred to journals and henceforth it remains with the journal. It is implied that the institution/university have consented to drafting of the article from thesis. The problem arises when one or both have left the institution. This gray area need to be resolved by entering into agreements prior to the initiation of research work itself and developing good IPR policies by research institutes and universities. Copyright statement and order of authorship in articles generated from the thesis should be mentioned in one of the title pages of the thesis.

Though copyright violation in research publication can be handled ethically and legally by evoking appropriate remedy, prevention of such issues are better than seeking remedies later. Authorship should be earned to enjoy it than gifted. A "give respect and take respect" policy is the best answer to avoid most authorship issues. The copyright act enacted in the 8 th year of Indian republic was drafted in tune with English and American legislation and international conventions and are not primarily intended to protect research related publications. Later when such issues came up before the court, it applied various provisions to resolve so. A strong legislation in this regard will be a welcome move to curb all research related malpractices.

 
  References Top

1.
Kempers RD. Ethical issues in biomedical publications. Fertil Steril 2002;77:883-8.  Back to cited text no. 1
    
2.
Kotur PF. How to write a scientific article for a medical journal. Indian J. Anaesth 2002;46:21-5.  Back to cited text no. 2
    
3.
Indian Copyright Act 1957. Available from: http://www.copyright.gov.in/Documents/CopyrightRules1957.pdf. [Last accessed on 2015 Aug 17].  Back to cited text no. 3
    
4.
The copyright Act 1957, Bare Act with Short Comments. Delhi: Universal Book Publishers; 2015.  Back to cited text no. 4
    
5.
Malhotra S. Right of Ownership Under Indian Copyright Law. Available from: http://www.legalservicesindia.com. [Last accessed on 2015 Aug 29].  Back to cited text no. 5
    
6.
LawTeacher UK. Conflict between Author and Owner Law Essays. Available from: http://www.lawteacher.net/free-law-essays/commercial-law/conflict-between-author-and-owner-law-essays.php?cref=1. [Last accessed on 2015 Aug 17].  Back to cited text no. 6
    
7.
About Copyright, Copyright Basics. Available from: http://www.copyright.com.au. [Last accessed on 2015 Aug 29].  Back to cited text no. 7
    
8.
Krishnan V. Etiquette in scientific publishing. Am J Orthod Dentofacial Orthop 2013;144:577-82.  Back to cited text no. 8
    
9.
Bhattacharya S. Authorship issue explained. Indian J Plast Surg 2010;43:233-4.  Back to cited text no. 9
[PUBMED]  Medknow Journal  
10.
Holden C. Korean stem cell scandal. Schatten: Pitt panel finds ′misbehavior′ but not misconduct. Science 2006;311:928.  Back to cited text no. 10
    
11.
Available from: http: www.retractionwatch.com. [Last accessed on 2015 Aug 29].  Back to cited text no. 11
    
12.
Jawaharlal N, Umasankar K. Basic tenents of clinical research. J Indian Orthod Soc 2012;46:1-8.  Back to cited text no. 12
    




 

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