Ghostwriting refers to the commissioned preparation of texts for remuneration. In the external presentation, only the client is named as author, the actual writer, the “ghostwriter”, remains hidden. But is that actually allowed?
Ghostwriting as a service already existed in antiquity. Cicero, Plato, Caesar, Augustus and others have their speeches written by others. Even today, ghostwriting is an integral part of society. Especially in politics, science and business, contract documents are created and published on behalf of others for a fee. Nevertheless, there are often legal – not unproblematic – issues, especially with regard to the work of ghostwriters and ghostwriter mediation in higher education. The following article presents the terms and conditions of scientific ghostwriting in a compact and summary manner.
Ghostwriting order & its legal basis
The legal basis of a ghostwriter contract is a contractual agreement as it can be concluded according to the principle of civil private autonomy of the parties. From a legal point of view, such an agreement is a contract for works acc. § 631 BGB. As part of this contract of work, the author commits himself to the preparation of the respectively agreed service. At the same time, the contractual agreement constitutes a waiver claim of the author for his copyright claims and a transfer of all rights of use to the client. The client undertakes in return to pay the agreed fee. Such a hedge can also take place within the framework of the General Terms and Conditions (GTC).
Is academic ghostwriting punishable?
With its basic judgment of 01.09.2009, the Higher Regional Court expressed clearly on academic ghostwriting. The process involved the agreements made between the ghostwriter and the client. With this agreement, the author (ghostwriter) committed to conceal his own authorship. The client was allowed to publish the work as his own. The Frankfurt Higher Regional Court stated in its ruling that such an agreement was in principle not objectionable.
The verdict further said that the issue of legality would not depend on the area in which the ghostwriting activity is being used. Rather, ghostwriting itself should be considered a service. This also applies to academic ghostwriting. Thereafter, the preparation of preliminary studies, exposés or templates for scientific work is just as legal as the writing of textbooks or similar.
Which criminal and civil sanctions are possible?
When it comes to the question of the legal assessment of academic ghostwriting, the following constellations must be distinguished:
- Ghostwriter / Mediation – Criminal Law
- Client – Criminal Law
- Client – University (Higher Education Act)
- Ghostwriter / Mediation – Client (Civil Law).
For the first three constellations different criminal offenses are considered as well as sanctions on the part of the university. In particular on the basis of the affidavit gem. § 157 StGB it can come to sanction possibility. For this purpose, a detailed description is made in the following section.
In the constellations between ghostwriter and client sometimes come civil claims, for example. due to poor performance acc. §§ 280 ff. Civil Code or even copyright claims. Copyright claims include in particular the rights of use of the respective work. The client of a work acquires rights of use. In contrast, the author retains the moral rights (§ 13 UrhG), which can not be compensated under law. It follows that the author could assert his rights in a reproduction or distribution of the work.
When can criminal sanctions be expected?
The legal situation in the relationship between university and client becomes more difficult. If the employer of a ghostwriter submits his work as his own contrary to the contractual agreement, sanctions on the part of the university can be expected. This is especially true in the case where the work written by a ghostwriter is filed and discovered as a separate one on the basis of a sworn statement. In this case, a criminal liability of the student due to false insurance on oath instead of gem. § 156 StGB in question. The student agrees to an affidavit stating that he is doing the work himself and independently, i. made without external help. Should he, contrary to this statement, submit a work other than his own, it may even be expected that he will be de-registered or fined. For this, however, the university needs a legal basis in the form of a regulation in the university system.
However, the facts described must be clearly distinguished from the judgment of the Frankfurt Higher Regional Court. In the judgment, the court designates the use of a ready-made work as a template or preliminary study in the creation of its own work as legal. In the opinion of the court, only the current state of research is clarified.