Earlier this month, I had the opportunity to attend an illuminating presentation on ‘Copyright & Collaboration in Works of Theatre’ by Dr. Luke McDonagh. The audience, comprised of a theatre owner, actors, artists, and publishers, in addition to law students, was a heartening reflection of the need for interdisciplinary academic scholarship analysing copyright law (because lawyers do not have all the answers - or the questions!).

In the context of theatre, the presentation emphasised the function of the script as a text that comes into being with the purpose of being performed. This assumes significance for any meaningful analysis of the reasonable scope of the author-playwright’s moral rights. Empirical research reveals the inherently collaborative nature of creative processes in the context of creating theatrical works, which are often centred around workshopping. The workshopping process involves various agents, i.e., actors, playwrights, and directors assuming each other’s roles interchangeably and often radically reimagining the script such that it can be said to be collectively authored by the end of the process. This collaborative process is conceptually mutilated to fit the individualistic ideal of authorship under copyright law, producing the legal certainty and convenience of dealing with a single rights holder. The creativity emerging out of the power struggles that the complex, messy, unpredictable, and organically negotiated workshopping process entails is inherently of the nature of a social practice. This is often obscured by the law’s privileging of the singular, romantic author whose superior genius merits protection for both his personhood interests tied to the work as well as the public’s interest in receiving the work as it was originally imagined by the author.

What stood out to me particularly during the presentation was the deliberate academic choice that Dr. McDonagh makes in his work to explore and reveal the lived experiences underlying the arbitrary categories and standards that copyright law creates—legal categories that reify power and insulate the law from critique by mystifying it via neutral rules and evidentiary standards. Using this context, I analyse joint authorship through a feminist lens in this post.

The strongest justification for moral rights emerged out of the personhood theory, which meant to protect the author’s deep connection with his or her work, which is regarded as an extension of his or her personality itself. However, when an actor’s speech patterns are used to write dialogues, he or she could potentially be said to acquire a personhood interest in the script. Similarly, when a woman is recognised as a muse and the work created is dedicated to her as a tribute, it is possible that she has a greater personhood interest in the work that statedly reflects her personality than the male writer who decided to fix his expression around it. Rendering women and their experiences knowable predominantly through a male gaze also incurs public interest costs arising out of a homogenous public sphere where the lack of diversity of voices cripples creativity.

The recent decision by the UK Court of Appeals in Julia Kogan v. Nicholas Martin seems to be shaping the contours of the law on joint authorship in the UK towards “identifying the true nature of the interaction between the parties”. The situatedness of this identification within crucial context makes it valuable to feminist scholarship in exposing power differentials among parties. However, the case also quoted Ezra Pound’s contribution to The Waste Land, a poem regarded as solely authored by T.S. Eliot. The Court held that despite Pound’s significant contributions, which were more than sufficient to justify a claim for joint authorship based on their nature and extent, the work was not jointly authored because “neither” poet regarded it so. Building upon a very insightful question put forth by Dr. Carys Craig, it is important to consider whose intention is considered crucial for a claim of joint authorship to succeed and what are its implications.

According to the British Columbia Supreme Court in Neudorf v. Nettwerk Productions Ltd., Canadian law required evidence of the parties’ shared intent to be joint authors in addition to working towards a common design and making significant expressive contributions to become part of a unitary whole. The Canadian Federal Court (FC) disapproved of this decision in Neugebauer v. Labieniec by holding that Neudorf was incorrect in requiring evidence of the parties’ shared intent to be joint authors. The decision in Neudorf emerged from a reliance on US standards for joint authorship, such as those used by the US Court of Appeals in Childress v. Taylor which held that the elevation of any person to the status of a joint author must not occur unless every collaborator intended that the other be a joint author of the work. The FC in Neugebauer held that the Canadian Copyright Act was similar to the UK Copyright Act of 1912 in this regard and did not require the joint intent of parties for joint authorship. However, the FC in Neugebauer also held that the Neudorf standard was met in the case based on the facts therein. Thus, while Canada awaits an authoritative determination that joint authorship can be found in the absence of shared intent, the shared intention of the parties to be joint authors continues to have strategic if not determinative value in Canadian caselaw.

As per an empirical study titled ‘Achieving Equity in Canadian Theatre: A Report with Best Practice Recommendations’, women comprise on average 30% or less of the artistic directors, directors, and playwrights in theatres in Canada, Australia, the UK, and the US. The widest gender disparity is conspicuous in the playwright category: 63% of the productions were authored by men, 22% by women, and 15% by mixed gender partnerships. In Canada, women make up fewer than 30% of theatre’s creative leaders, despite constituting a majority of theatre audiences (49% women compared to 40% men), a majority of all of theatre school students at the National Theatre School of Canada (58%) and writing plays that are 18% more profitable than those written by men (ironically, the routine excuse for non-production of women’s plays is that they are riskier at the box-office). I call this phenomenon the ‘feminisation’ of women’s creative labour in theatre, which can be revealed by feminist inquiries into the power struggles involved in the creation of works of theatre. Women’s intellectual and creative contributions are susceptible to being cited out of male bibliographies, cheapened and trivialised as emotional labour that they are socialised and expected to perform. Often this male gaze can be significantly internalised and women may find it difficult to challenge the personhood interests of external actors in their personality and work by doubting the significance of their own contributions.

A jurisdiction such as the US, that requires the joint intent of parties to create a jointly authored work, can end up privileging the intention of the white male author who intended his work to be solely authored and assumed his female partner’s contributions to be those of a “friend and critic”. In a jurisdiction that recognizes authors’ moral rights, the moral rights would then vest in the male author as the legally entitled sole author because there was no common intention to be joint authors regardless of a “common design to create” and  notwithstanding the actual creative contribution of the woman to the work.

A cause and effect of this feminisation is the pedagogical use of works by predominantly white male playwrights at theatre schools, which impact graduates’ choices as artists and audiences regarding the plays that they produce and support. There is arguably a public interest involved in developing and using the law with the purpose of fostering the creation and production of works by female playwrights in order to challenge a system premised on the reification of hegemonic culture at the cost of alternative non-conforming identities, values, and works.

However, even as I write this, I am cynical of the potential of any reimagined copyright system to meaningfully further the goals of distributive justice because of the gendered and often privileged nature of 1) the exploratory risk-taking required to be creative 2) the ability and impetus to fix one’s ideas in a medium and 3) to enforce one’s claims in a court of law. Nonetheless, this recognition of the limited potential of copyright as a system to lead to social justice is useful to interrogate the values orienting its justifications and shed light on the extent to which they fall short of the objectives they unabashedly claim to fulfill.

Anupriya Dhonchak is an international exchange student at Osgoode Hall Law School from National Law University, Delhi and is currently working as a Research Assistant to Dr. Carys Craig.