Is Xu Rong to Sue?

Professor Xu

Many are the occasions on which this weblog has featured the moral right of the author of a work to be credited as such. In the olden days, there was indeed an element of morality attached to this: the linkage of an author to his or her intellectual output was seen as a just and proper corollary of the process of placing that work, as an emanation of the author's personality, before a public audience.  Now the author's right be known as the author has a commercial flavour too: with falling book-sales, unpredictable reading patterns among the consumer public and major competition in terms of what consumers do with their time and money, the author's right to be known as such is part and parcel of the merchandising of the author as a brand, with possible spin-offs in terms of games, souvenir items, product endorsements and events.  Article 6 bis(1) of the Berne Convention for the Protection of Literary and Artistic Works supports this principle:

"Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation".

This principle is reflected by the domestic laws of very many countries, which generally provide under their national law for appropriate remedies where the author is not so named.  Some countries additionally have a tort of false attribution of authorship (an example being the UK's Copyright, Designs and Patents Act 1988, section 84), but that only gives a right of action to a person who is falsely accused of being an author of something he didn't write, not to a person who is not accused of being the author of what he did.

As for inventions, the situation is rather different. By Article 4ter of the Paris Convention for the Protection of Industrial Property, "The inventor shall have the right to be mentioned as such in the patent". But there is no right to object to false inventorship and no right to be named as inventor outside the four corners of the granted patent; nor is there any right to be acknowledged as the founding father of a new area of science of technology.

It is with this background information in mind that this Kat considered the case of Professor Rongxiang Xu, brought to his attention by Jessica Bloom Paulson, outreach coordinator for Professor Xu's company, MEBO International via this Yahoo News item:

 Nobel assembly says has never heard of US plaintiff [Merpel winces at "says has", which she would never write, so please don't email to complain!]

The assembly that awards the Nobel Medicine Prize said Friday it had never heard of a stem cell researcher who has filed a US lawsuit against it for allegedly crediting his work to this year's laureates.

"We have not yet received any such lawsuit and have not, therefore, been able to assess it in detail. The name of the plaintiff has never been put forward to us previously," the Nobel Assembly said in a statement.

Rongxiang Xu, a Los Angeles-based researcher who describes himself as the founder of "human body regenerative restoration science", claims he made a key discovery credited to the Nobel winners a decade before they did. He filed a lawsuit in California this week against the Nobel Assembly at the Karolinska Institute, which awarded this year's prize to Shinya Yamanaka of Japan and John Gurdon of Britain. They were honoured for their work in cell programming, a research area that has nourished dreams of replacement tissue for people crippled by disease.

In awarding the prize, the Nobel jury said: "Their findings have revolutionised our understanding of how cells and organisms develop," and "created new opportunities to study diseases and develop methods for diagnosis and therapy."

Describing his lawsuit as a first against the Nobel Assembly, Rongxiang Xu said he discovered "regenerative" cells in 1984 while studying treatments that have benefited 20 million burn victims in 73 countries. Alleging libel and unfair competition in the suit filed in Orange County, southern California, he claimed his good reputation was defamed by the assembly, which is made up of 50 professors at the Karolinska Institute.

He argued the assembly's statement "is false, as he was the scientist who made the discovery a decade earlier, therefore defaming his exemplary reputation," said a statement announcing the lawsuit.

This Kat does not know how strong Professor Xu's case is, in factual and legal terms -- and he would never dare to venture into the Californian law relating to defamation which, he guesses, must have very little room in which to manoeuve within the framework of Constitutionally-protected freedom of speech. However, he thinks that it must be a pretty rare case in which an action for defamation succeeds, in California or outside it, in which the allegedly defamatory statement  does not contain the name or indeed any allusion to the allegedly defamed party.  That's why the copyright-driven solution of a right to be acknowledged as the author has its attractions.

Merpel explains about the Nobel Prizes: they're basically Oscars for people who can't act.

Human body regenerative science here and, for simple souls, here