Li v Leng

[2013] FCCA 1252

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v LENG [2013] FCCA 1252

Catchwords:
COPYRIGHT – Proceedings instituted under Part IX of the Copyright Act 1968 (Cth) – alleged breach of ss.193, 195AC and 195AI of the Copyright Act 1968 (Cth) – consideration of s.7B of the Privacy Act 1988 (Cth) – consideration of relevant sections – application dismissed.

Legislation:  
Copyright Act 1968 (Cth), ss.193, 195AC, 195AI

Privacy Act 1988 (Cth), s.7B

Applicant: DONGGUANG LI

Respondent: JINSONG LENG

File Number: PEG 88 of 2012

Judgment of: Judge Whelan

Hearing date: 15 May 2013

Date of Last Submission: 15 May 2013

Delivered at: Melbourne

Delivered on: 19 September 2013

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Mr G Provan

Solicitors for the Respondent: Guy Provan

THE COURT ORDERS THAT:

1. The Amended Application of DONGGUANG LI filed 20 August 2012 be dismissed.

AND THE COURT NOTES THAT:

A.The publisher is at liberty to remove DONGGUANG LI as author from any future reproduction of the book chapter entitled ‘A Role-Based Cognitive Architecture for Multi-Agent Teaming’.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 88 of 2012

DONGGUANG  LI

Applicant

And

JINSONG LENG

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns proceedings instituted by the Applicant,

   
   

   Dr DONGGUANG LI (“the Applicant”), under Part IX of the Copyright Act 1968 (Cth) (“the Act”). The Applicant claims that the Respondent, Dr JINSONG LENG (“the Respondent”), has breached ss.193, 195AC and 195AI of the Act. The Applicant also claims that the Respondent has “infringed the Applicant’s rights not to use and to disclose his personal information without consent specified in Privacy Act 1988”.[1]  

   [1] Amended Application of Dongguang Li filed 20 August 2012, at page 2.

2. The Respondent denies that the Applicant can enforce any moral rights with respect to the work which is the subject of the proceedings as he was not a joint author. The Respondent denies any breach of the Privacy Act 1988 (Cth) (“the Privacy Act”), and also pleads that the Privacy Act does not apply to the acts of individuals carried out in a non-business capacity.[2]

   [2] Privacy Act 1988 (Cth), s.7B(1).

Background

1. The Applicant, between 1995 and 2011, was employed in the School of Computer and Information Science at Edith Cowan University (“ECU”) as an Associate Professor. In November 2008,

   
   

   ECU advertised a three year post-doctoral research fellow position.

   
   

   The advertisement indicated that it was intended that the successful applicant would work with Dr Dongguang Li and “within an established highly-skilled, multidisciplinary teams and will also contribute to innovative research programs”.[3]

   [3] Affidavit of Jinsong Leng filed 17 September 2012, at Annexure JL11.

2. The Respondent was the successful applicant for the position.

   
   

   The Respondent had previously been a software engineer and between 2005 and March 2008, had been a PhD student in Computer Science at the KES Centre at the School of Electrical and Information Engineering (“the KES Centre”) at the University of South Australia

   
   

   (“the University”). From March 2008 to January 2009, he worked as a Research Associate at the School of Computer and Information Science at the University. He commenced his employment with ECU on

   
   

   2 February 2009.

3. The article which is the subject of these proceedings was published as a chapter of a book entitled ‘Agent and Multi-agent Technology for Internet and Enterprise Systems’.[4] The chapter is titled ‘A Role-Based Cognitive Architecture for Multi-Agent Teaming’.[5] The authors in the published version are named as:

   ·JINSONG LENG (the Respondent);

   ·CHEE PENG LIM (“Professor Chee Peng Lim”);

   ·JIUYONG LI (“Professor Jiuyong Li”);

   ·DONGGUANG LI (the Applicant); and

   ·LAKHMI JAIN (“Professor Lakhmi Jain”).

   [4] Prof. Anne Hakansson, Dr. Ronald Hartung and Prof. Ngoc Thanh Nguyen (eds), Agent and Multi-agent Technology for Internet and Enterprise Systems (2010) Springer-Verlag, Berlin.

   [5] Affidavit of Jinsong Leng filed 17 September 2012, at Annexure JL20.

4. It was the Respondent’s evidence that Professor Lakhmi Jain was his PhD Supervisor and Director of the KES Centre at the University.[6] Professor Jiuyong Li was a Professor and the leader of another research group at the School of Computer and Information Science at the University.

   [6] Affidavit of Jinsong Leng filed 17 September 2012, page 2 at para.8.

5. Early in 2008, the Respondent says he commenced work on a paper entitled ‘A Role-Based Framework for Multi-agent Teaming’

   
   

   (“the conference paper”).[7] The paper was prepared by the Respondent and submitted to the organisers of the 12^th International Conference on Knowledge-Based and Intelligent Information and Engineering Systems in or about April 2008. The Respondent says that in preparing the conference paper, he regularly discussed the content with

   
   

   Professor Lakhmi Jain and Professor Jiuyong Li who provided comments and suggested revisions.[8] The paper was published in September 2008 and named the Respondent, Professor Lakhmi Jain and Professor Jiuyong Li as the authors.[9]

   [7] Ibid, page 3 at para.11.

   [8] Ibid, at para.15.

   [9] Ibid, at Annexure JL8.

6. In October 2008, the Respondent was invited to contribute a chapter to a book to be published by Springer-Verlag on artificial intelligence. The chapter was to be based on and expand on the material which was the subject of the conference paper. The Respondent stated that he discussed the contents of the book chapter with Professor Lakhmi Jain and Professor Jiuyong Li and with Professor Chee Peng Lim who was a visiting professor at the University.[10] All three provided comments, suggestions and feedback on the contents of the book chapter.

   
   

   The Respondent provided to the editors an abstract, the proposed structure of the chapter and biographies for each of the authors – himself and Professors Lakhmi Jain, Jiuyong Li and Chee Peng Lim – and on about 16 November 2008, he received confirmation that the proposal for the chapter had been accepted.[11]

   [10] Ibid, page 4 at para.20.

   [11] Affidavit of Jinsong Leng filed 17 September 2012, at Annexure JL10.

7. The Respondent states that between November 2008 and January 2009, he worked on the book chapter and provided drafts to

   
   

   Professor Chee Peng Lim who made a number of amendments to the documents.[12] The chapter was completed and submitted to the editors on about 18 January 2009.

   [12] Ibid, page 5 at para.23.

8. The Respondent says that shortly after he started working at ECU,

   
   

   Dr Dongguang Li, the Applicant, asked him to provide details of any academic articles or papers on which he was working.[13]

   
   

   The Respondent says that on 4 February 2009, he sent an email to the Applicant attaching the book chapter and another paper.[14]

   
   

   The Applicant denies that he received a copy of the book chapter from the Respondent in February 2009.[15] He could not recall receiving the email.[16]

   [13] Ibid, at para.30.

   [14] Ibid, at Annexure JL13.

   [15] Transcript of Proceedings, 14 May 2013, page 26 at lines 1 and 2.

   [16] Ibid, at line 14.

9. It was the Respondent’s evidence that on several occasions in February and March 2009, the Applicant told him that he should not be working on papers at ECU unless he, the Applicant, was named as an author.[17] The Applicant told the Respondent that unless he was named as an author on any publications, including the book chapter, the Respondent would not be allowed to continue work on those papers.[18]

   [17] Affidavit of Jinsong Leng filed 30 April 2012, page 2 at para.10.

   [18] Ibid.

10. The book chapter was accepted for publication in May 2009.

    
    

    On 4 May 2009, the Respondent forwarded to the Applicant a copy of an email from the Editor stating that the chapter had been accepted.

    
    

    The email notes “You are one of the authors of that chapter”.[19]
    The Applicant denies receiving the email.[20]

    [19] Affidavit of Jinsong Leng filed on 30 April 2012, at Annexure JL1.

    [20] Transcript of Proceedings, 14 May 2013, at pages 26, 27 and 28.

11. In August 2009, the Respondent received correspondence from the book’s Editor requesting material necessary for publication to go ahead, including a ‘Consent to Publish’ form.[21] On 18 August 2009,

    
    

    the Respondent forwarded the documents requested and a ‘Consent to Publish’ signed by him as corresponding author.[22] The document names the authors as Jinsong Leng, Jiuyong Li, Chee Peng Lim,

    
    

    Dongguang Li and Lakhmi Jain.[23] The book was eventually published in October 2010. It was the Respondent’s evidence that the only change to the document made by him after January 2009 was the addition of the Applicant as an author.[24]

    [21] Affidavit of Jinsong Leng filed 17 September 2012, at Annexure JL17.

    [22] Ibid, at Annexure JL18.

    [23] Ibid, at Annexure JL19.

    [24] Transcript of Proceedings, 14 May 2013, page 44 at line 30.

12. The Applicant says that the book chapter was submitted, accepted and published without his knowledge and that he never saw the chapter until after it was published.[25] He stated that he did not write any of the document, he did not know the other authors named (apart from the Respondent), and had never collaborated with them.[26]

    [25] Ibid, page 13 at lines 23 -25.

    [26] Ibid, page 14 at line 16 and page 15 at lines 9 and 10.

13. The Applicant claims that the research work for the book chapter was carried out in ‘his’ laboratory at ECU between February and August 2009.[27] All of the research activity of the Respondent was under the supervision of the Applicant. He claimed that all of the research work including the design, concepts, research and experimental results were done in ‘his’ laboratory by the Respondent and himself.[28] He claimed to be an originator of the work as the “responsible staff member” and project leader.[29] He claimed to have been involved in the experimental design, data collection, analysis and some other directions.[30]

    [27] Further Affidavit of Donnguang Li filed 20 August 2012, page 4 at para.11.

    [28] Transcript of Proceedings, 14 May 2013, page 16 at lines 43 and 44.

    [29] Transcript of Proceedings, 15 May 2013, page 60 at lines 39 and 40.

    [30] Transcript of Proceedings, 14 May 2013, page 22 at lines 1 and 2.

14. Professor CRAIG VALLI (“Professor Valli”) was the head of the School of Computer and Information Science at ECU at the relevant times. His evidence was that he was the Respondent’s supervisor and each member of the academic staff reported to him.[31] There was no other hierarchy. He specifically denied that the Applicant was the Respondent’s supervisor[32] although he agreed that he expected that the two would work closely together on projects.[33]

    [31] Affidavit of Craig Valli affirmed 17 September 2012, page 2 at paras.6 and 7.

    [32] Affidavit of Craig Valli affirmed 17 September 2012, page 2 at para.7.

    [33] Transcript of Proceedings, 15 May 2013, page 34 at line 47.

15. It is common ground that in September 2009, the Applicant filed a complaint against the Respondent with the Executive Dean. In

    
    

    August 2011, the Deputy Vice-Chancellor, Professor FINLAY-JONES, confirmed in a letter to the Respondent that those concerns were rejected in 2009. The letter “clarifies the University’s position that you have done no wrongdoing and reassures you of your good standing with respect to the publications that were the initial subject of inquiry in 2009”.[34]

    [34]Affidavit of Jinsong Leng filed on 17 September 2012, at Annexure JL21.

16. The Applicant was dismissed by ECU in January 2011. Since then, he has brought several proceedings in different fora against both ECU and individual members of ECU staff.

Conclusions

1. The Applicant represented himself in these proceedings. This created some difficulty in understanding the precise nature of the Applicant’s claim and confining the proceedings to matters relevant to the action before the Court. The Applicant made numerous allegations against the Respondent and his conduct. Many of these were scandalous and without any substantiation.

2. I intend to confine myself to the statutory claims and to the evidence before the Court.

3. Section 189 of the Act defines a moral right in relation to an author as:

   ·A right of attribution of authorship; or

   ·A right not to have authorship falsely attributed; or

   ·A right of integrity of authorship.[35]

   [35] Copyright Act 1968, s.189.

4. A moral right is an individual right which vests, relevantly in this case, in the author of a literary work.[36] It is not contested that the work in question is a literary work within the meaning of the Act.

   [36] Copyright Act 1968, s.190.

5. In this case, we are dealing with a work of joint authorship. Section 10 of the Act defines that to mean:

   A work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors.[37]

   [37] Ibid, s.10.

6. The Court was also referred to the ECU Policy on Authorship, Publication of Research, and Peer Review.[38] Clause 4.3 and 4.4 of that policy reads:

   [38] Exhibit A1 of Dongguang Li at E-11.

   4.3Only persons who have participated in a substantial way in at least part of the relevant research should be included as an author of a publication derived from that research.

   
   

   The requirements for authorship depend to some extent on the discipline, but must be based on substantial contributions in a combination of:

   i.      conception and design of the project;

   ii.     analysis and interpretation of research data;

   iii.     drafting or revising significant parts of the work

   4.4General supervision of the research group or participation solely in the acquisition of funding or the collection of data does not in itself justify authorship. Similarly, being a supervisor of a research higher degree student is not in itself sufficient for co-authorship of any of the student’s publications; contributions summarised in the previous clause must be made.[39]

   [39] Ibid, at Clauses 4.3 and 4.4.

7. The Respondent gave cogent evidence of the development of the book chapter and his collaboration with Professors Lakhmi Jain,

   
   

   Chee Peng Lim and Jiuyong Li. It is evident that the document had its origins in the conference paper ‘A Role-Based Framework for

   
   

   Multi-agent Teaming’ which was published in 2008, prior to the Respondent’s employment by ECU. Significant parts of both papers also refer to the use of JACK, a commercial software tool with which the Applicant was unfamiliar. Apart from the assertion that the Respondent and he carried out research work for the chapter in the laboratory at ECU and that he was involved in experimental design, data collection and analysis, the Applicant did not point to any material in the book chapter, the content of which he said was designed or analysed by him or by the Respondent during 2009.

8. There is in fact no evidence to support the Applicant’s claim that he collaborated with the other named authors (indeed he denied that he did with three of them)[40] or contributed to the content of the document or made any contribution to the concept and design of the project, analysis and interpretation of the research data or the drafting or revising of any part of the work.

   [40] Transcript of Proceedings, 14 May 2013, page 15 at lines 10 and 11.

9. When asked if he collaborated with the Respondent, the Applicant’s response was that he had hired him on behalf of ECU and that he contributed a great deal to the work.[41] He later went on to say:

   Jinsong Leng submitted – got accepted, keep communicated with publisher all behind me, while he was working under my supervision, using Edith Cowan University research fund, which I gained, I applied for, I was awarded, so that is why I am suing him, breaching the Copyright Act based on this. I am not saying I contributed it in writing this current version...[42]

   [41] Ibid, page 13 at line 46 and page 14 at lines 5 and 6.

   [42] Ibid, page 17 at lines 7, 8, 9, 10 and 11.

10. When asked about the content of the document, the Applicant responded that he was not sure and needed to take time to read through every line and paragraph of the article.[43] He had not read the article in sufficient detail to answer the question.[44]

    [43] Ibid, page 20 at lines 41 and 42.

    [44] Ibid, at pages 20 and 21.

11. It is not necessary in my view, in determining the issue of authorship, to find that the Applicant was, or was not, the academic supervisor of the Respondent. The Applicant clearly assumed that that was his role although the only evidence to suggest that ECU had allocated him that role was contained in a document which Professor Valli described as having been sent in error to him.[45]

    [45] Transcript of proceedings, 15 May 2013, page 32 at lines 1 and 2.

12. Whatever the Applicant thought, the evidence suggests that he had no formal role in supervising the Respondent. In any event, it is clear that supervising the Respondent’s research would not be sufficient to claim ownership of the work he produced.

13. I am satisfied, on the basis of the evidence before the Court, that the content of the book chapter was well settled prior to the Respondent’s employment with ECU. As is not unusual with academic papers,

    
    

    the time period between the completion of the work and its publication, involving as it did academic review of the contentions,

    
    

    was considerable. This is understandable as the publication involved a book to which a number of different authors contributed chapters.

14. There is nothing to suggest that any work done by the Respondent at ECU between February 2009 and August 2009 was used in the book chapter or that the Applicant contributed to its contents in any way.

15. Moral rights are the rights of the author. If, as I am satisfied,

    
    

    the Applicant was not an author of the work in question, then he has no standing to assert any moral rights with respect to authorship.

16. The Applicant claims a breach of s.193 of the Act. Section 193 of the Act provides that an author of a work has a right of attribution of authorship in respect of the work.[46] If the Applicant was an author of the chapter, then he was identified when the work was reproduced both in printed and on-line form.

    [46] Copyright Act 1968, s.193(1).

17. He also claims a breach of s.195AC of the Act. Section 195AC of the Act provides that an author has a right not to have the work falsely attributed.[47] It would appear that the Applicant claims that

    
    

    Professor Lakhmi Jain, Professor Chee Peng Lim and Professor Jiuyong Li were falsely named as authors. The only evidence before the Court is that the three named collaborated with the Respondent and contributed to the publication. Even if the Applicant was an author, he has produced no evidence that authorship was falsely attributed to the authors named.

    [47] Ibid, s.195AC(1).

18. The Applicant further claims a breach of s.195AI of the Act.

    
    

    Section 195AI of the Act provides that an author has a right of integrity of authorship with respect of a work.[48] The author’s right is the right not to have the work subjected to derogatory treatment.[49] The Applicant has produced no evidence that the work has been subjected to derogatory treatment.

    [48] Copyright Act 1968, s.195AI(1).

    [49] Ibid, s.195AI(2).

19. As I am satisfied that the Applicant was not an author of the work in question, any claims based on the moral rights with respect to authorship must be dismissed.

20. The publisher is at liberty to remove the Applicant’s name as author from any future reproduction of the chapter.

21. The Applicant also claims that the Respondent breached the

    
    

    Privacy Act by using his name and disclosing his personal information in the publication without obtaining his permission. Apart from the Applicant’s name, the document contains no personal information about the Applicant other than his email address. Second,

    
    

    the Respondent denies that the Applicant’s name was used without his permission. I accept the Respondent’s evidence that the Applicant told him that his name should appear on papers produced by him while he was working in the laboratory at ECU and that the Respondent notified the Applicant in May 2009, many months before the publication,

    
    

    that his name would be on the chapter.

1. Further, I accept that s.7B of the Privacy Act exempts an act done by an individual if the act is done other than in the course of a business carried out by the individual.[50] The Respondent was an employee of ECU, as was the Applicant. He was not conducting a business when he named the Applicant as a co-author of a chapter in a book published by Springer-Verlag.

   [50] Privacy Act 1988, s.7B(1).

2. For these reasons, there was no breach by the Respondent of the Privacy Act and the Application, in so far as it relates to any such breach, is also dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 19 September 2013