Anushka IyerUniversity of London Press v. University Tutorial Press
Citation: [1916] 2 Ch. 601
Court: Court of Chancery Division, United Kingdom.
Bench: Peterson J.
Facts:
The University of Tutorial Press (“Defendant University”) had appointed examiners – Professor Lodge and Mr. Jackson (“the two examiners”) for the matriculation exam to be held in the University of London. A condition for the appointment of the examiners was that the copyright subsisting in the examination papers set by them would belong to the Defendant University. Subsequently, the Defendant University entered into an agreement with the University of London Press (“Plaintiff University”) to assign all copyrights belonging to the Defendant University to the Plaintiff University.
After the examinations, the Defendant University issued a publication that contained numerous papers, including the ones set by the two examiners, with an answer key and criticisms of the manner in which the question papers were set.
The Plaintiff University instituted a suit of copyright infringement against the Defendant University. During the course of the suit, the two examiners were implicated as co-plaintiffs.
Issues –
Whether examination papers are ‘literary works’ under the meaning of the Act?
Whether the examination papers are ‘original’?
Who was the owner of the copyright subsisting in the examination papers after they had been prepared?
Whether the Defendant University infringed the copyright of the two examiners?
Laws involved:
UK Copyright Act, 1911
Section 1(1): The subject matter of copyright.
Section 2(1): Infringement of copyright.
Section 5: Ownership of copyright and exceptions for the same.
Section 35: Interpretations of the terms used in the Act.
Analysis:
Whether examination papers are ‘literary works’ under the meaning of the Act?
The UK Copyright Act of 1911 provides for copyright in every “original literary, dramatic, musical, and artistic work.”[i] The Court stated that although the Act provides no specific definition of a literary work, it provides a non-exhaustive list of things included within the meaning of literary works.[ii] This includes, among other things – maps, charts, plans, tables, and compilations. Therefore, it can be seen that the quality or style of writing has no bearing on what constitutes a ‘literary work’ as opposed to ‘literature’. Under the meaning of the Act, any written or printed matter can be considered as literary work.
With these observations, the Court concluded that examination papers, being in a printed form, could come within the definition of literary works under the meaning of the Act.
Whether the examination papers are ‘original’?
The Court stated that ‘originality’ under Copyright law did not pertain to the originality in idea or thought but the expression of such idea or thought. The Act doesn’t require that the expression must be in an original form, but that such expression must not be copied from another work – it must originate from the author.
The two examiners had used selection, judgment, and experience in order to prepare questions to test whether the students had read and understood the syllabus. Although the questions were prepared by relying on pre-existing knowledge common to all, they weren’t in themselves copied from anywhere. They originated from the two examiners and hence, they were subject to copyright under the Act.
Who was the owner of the copyright subsisting in the examination papers after they had been prepared?
The Act provides that the author of the work is the first owner of the copyright.[iii] The only exception to this lies in cases where the author was under a contract of service or apprenticeship.[iv] The Court relied upon the judgment passed in Simmons v. Health Laundry Co[v]. where the term ‘contract of service’ was distinguished from the term ‘contract for service’. In Simmons,[vi]the court stated that the difference between the two lies in determining the degree of direct control exercised by the employer, place of service, and the independence of the person rendering services. A contract of service involves the existence of a master-servant relationship where the person rendering services is obligated to obey the orders of the person demanding those services. In the case of a contract of service, the intellectual property would belong to the employer. However, in the case of a contract for service, the intellectual property would belong to the author subject to any agreement entered into the contrary.
In the present case, in addition to being employed by the Defendant University, the two examiners continued to be regularly employed by other educational institutions and were free to perform the work assigned by the Defendant University in their own time as long as it was completed before the final deadline. Therefore, the court stated that the two examiners were engaged in a contract for service. In such a scenario, the two examiners were the first owners of the copyright. The employment contract stated that the two examiners were obligated to assign their copyright to the Defendant University. In the absence of any specific assignment agreement, the copyright vested in the two examiners, but the Defendant University was equitably entitled to the copyright. The act of entering into a deed transferred this equitable right over the copyright from the Defendant University to the Plaintiff University. Additionally, the implication of the two examiners as co-plaintiffs conferred the right to sue for infringement on the Plaintiff University using which the present action was brought about.
Whether the Defendant University infringed the copyright of the two examiners?
The concept of ‘fair dealing’ implies that any copyrighted work can be used without permission or assignment as long as it is only for the purposes as stated in the Act. The Court stated that mere re-publication of copyrighted work would not be considered as fair dealing only because it was intended to be used for private study.
In the present case, the Defendant University had published the papers already published earlier by the Plaintiff University. While issuing the publication the Defendant University had included the answers to two examination papers, however, no attempt to provide answers for the advanced papers were taken. Furthermore, in the garb of criticism, the Defendant University had only published eleven lines based on the difficulty of the questions. The Court, therefore, concluded that the Defendant University had appropriated the work of the Plaintiff University, and it fails to fall within the scope of fair dealing.
Conclusion:
“What is worth copying, is worth protecting”[vii]
The Court passed the decision in favour of the Plaintiff University to the extent of the examination papers drafted by the two examiners – Professor Lodge and Mr. Jackson. However, the suit failed in relation to the other papers published by the Defendant University.
The judgment laid down the ‘test of originality’ even as we understand today and established the difference between a ‘literary work’ and ‘literature’. Furthermore, it clearly distinguished between the examination papers in which copyright vested with the Plaintiff University versus those with lack of title and passed the judgment only to that extent. The judgment passed by Justice Peterson, in this case, became a guiding light for the development of jurisprudence pertaining to originality in copyright law.
References:
[i] Section 1(1), UK Copyright Act, 1911. [ii] Section 35, UK Copyright Act, 1911. [iii] Section 5, UK Copyright Act, 1911. [iv] Section 5(1)(b), UK Copyright Act, 1911. [v] Simmons v. Health Laundry Co., [1910] 1 K. B. 543. [vi] Ibid. [vii] University of London Press v. University Tutorial Press, Limited, [1916] 2 Ch. 601.