UNIVERSITY OF LONDON PRESS, LIMITED V. UNIVERSITY TUTORIAL PRESS, LIMITED [1916 U. 119.] [1916] 2 CH. 601
FACTS
- The examiners (Professor Lodge and Mr. Jackson) were appointed for a matriculation examination of the University of London, a condition of appointment being that any copyright in the examination papers should belong to the University.
- The University agreed with the plaintiff company (University of London Press, Limited) to assign the copyright, and by deed purported to assign it to the plaintiff company. After the examination the defendant company (University Tutorial Press, Limited) issued a publication containing a number of examination papers (including three which had been set by two examiners who were co-plaintiffs), with criticisms on the papers and answers to questions. The university of London Press, Limited, commenced this action against the Tutorial Press, Limited, for infringement of copyright.
ISSUE
- Are examination papers within the meaning of this Act, ‘literary works’?
- Assuming that the papers are “literary work”, the question is whether they are original?
- In whom did the copyright in the examination papers vest when they had been prepared?
- Whether the defendants have infringed the copyright in the papers prepared by Professor Lodge and Mr. Jackson?
HELD
- The Copyright Act (UK Law) provides for copyright in “every original literary dramatic musical and artistic work”. The term “literary work” has not been defined in the Act but according to the Act, “Literary work’ includes maps, charts, plans, tables and compilations”. It covers work, which is expressed in print, or writing, irrespective of the question whether the quality or style is high. The word “literary” refers to written or printed matter. The papers set by examiners entailed the exercise of brainwork, memory and trained judgment, and even selection of passages from other authors’ works involved careful consideration, discretion and choice and thus “literary works” within the meaning of the present Act.
- “The word “original” does not mean that the work must be expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and in the case of “literary work”, with the expression of thought in print or writing. The originality, which is required, relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work - that it should originate from the author.”
- Examiners proved that they had thought out the questions which they set, and that they made notes or memoranda for future questions and drew on those notes for the purposes of the questions, which they set. The papers, which they prepared, originated from themselves, and were, within the meaning of the Act, original. The papers set by Professor Lodge and Mr. Jackson are "original literary work" and proper subject for copyright under the Act.
- The examiner was employed to prepare the papers on the subject in respect of which he was elected or appointed examiner. He had to set papers for September, 1915, and January and June, 1916, and his duty also comprised the perusal of the students' answers, and the consideration of the marks to be awarded to the answers. For this he was to be paid a lump sum. He was free to prepare his questions at his convenience so long as they were ready by the time appointed for the examination, and it was left to his skill and judgment to decide what questions should be asked, having regard to the syllabus, the book work, and the standard of knowledge to be expected at the matriculation examination.
- It is true that the University issued instructions to examiners for the conduct of the examination, but these instructions are only regulations framed with a view to securing accuracy in the system of marking. Professor Lodge and Mr. Jackson were regularly employed in other educational establishments and were not part of the staff of the London University, and it was not suggested that the other examiners were on the staff of the University.
- Therefore, the examiner in such circumstances can be appropriately described as in contract for service with the University. The copyright was vested in the examiners, but the University was equitably entitled to it subject to the assignment agreement between the examiner and the University. The University assigned its rights to the plaintiff company, which is now equitably entitled to the copyright.
- Examination papers are useful for educational purposes. Recognizing this demand, the plaintiff company published the matriculation papers. With the same object in view, the defendants published the "London Matriculation Directory," which included the papers on arithmetic and algebra, geometry, and more advanced mathematics, set by Professor Lodge and Mr. Jackson.
- The defendants on these facts contend that their publication of the three papers set by Professor Lodge and Mr. Jackson is a fair dealing with them for the purposes of private study under the Act, and is therefore not an infringement of copyright. It could not be contended that the mere republication of a copyright work was a "fair dealing" because it was intended for purposes of private study; nor, if an author produced a book of questions for the use of students, could another person with impunity republish the book with the answers to the questions. Both publications are intended for educational purposes and for the use of students but the defendants have failed to bring themselves within the protection of the Act. Therefore the plaintiffs ought to succeed so far as the questions prepared by Professor Lodge and Mr. Jackson for the examination in January, 1916, are concerned, and that the present action, so far as it relates to the papers set by the other examiners, fails.