Case study: University of London Press v. University Tutorial Press

By Anish Sinha 11 Minutes Read

“The court in this case held that examination papers are “original literary works” protected by copyright, as they involve sufficient creativity and intellectual effort. This broadened the interpretation of “literary works” under copyright law.”

Citation: [1916] 2 CH 601

Date of Judgment: 26th July, 1916

Court: Supreme Court of Judicature – Chancery Division

Bench: Peterson (J)

Facts

• The University Tutorial Press (“Defendant University”) engaged Professor Lodge and Mr. Jackson (“the two examiners”) to prepare the examination papers for the upcoming matriculation exams at the University of London.
• It was stipulated that, as a condition of their appointment, the copyright in the examination papers they created would automatically be owned by the Defendant University. Following this arrangement, the Defendant University entered into a formal agreement with the University of London Press (“Plaintiff University”), transferring all copyrights held by the Defendant University to the Plaintiff University.
• After the exams were conducted, Defendant University published a book that included several examination papers, among which were the ones prepared by the two examiners, as well as an answer key and critiques regarding how the questions were formulated.
• In response, the Plaintiff University initiated a lawsuit against the Defendant University, alleging copyright infringement. As the case progressed, Professor Lodge and Mr. Jackson, the two examiners, were brought in as co-plaintiffs in the legal action.

The decision of the High Court of Justice, Chancery Division in England

The court held that examination papers could indeed be considered “original literary works” and, therefore, eligible for copyright protection. He noted that the term “literary work” should be interpreted broadly, not limited to works of literature in the traditional sense but inclusive of any work expressed in writing.

The judgment emphasized that the creation of examination papers involved a certain degree of creativity, skill, and intellectual effort. This was sufficient to meet the requirement of originality under copyright law. As a result, the court concluded that examination papers were protected by copyright, and the defendant’s unauthorized reproduction of such papers (University et al.) constituted copyright infringement.

Court commented upon the significance of this case as it established that “literary works” encompass a wide range of written material, including those that might not traditionally be seen as literary or artistic. “The word “literary” seems to be used in a sense somewhat similar to the use of the word “literature” in political or electioneering literature and refers to written or printed matters. Papers set by examiners are, in my opinion, “literary work” within the meaning of the present Act.”

Key legal issues discussed

1. Assuming the examination papers as “literary work,” whether they are ‘original’?

Yes

The court held that the examination papers were “original” for the purposes of copyright protection. Justice Peterson determined that the examination papers met the criterion of originality required for copyright protection. The judge emphasized that “originality” in copyright law does not require the work to be novel or unique in the sense of being entirely new or unprecedented. Instead, originality means that the work must originate from the author and must involve some degree of skill, labor, and judgment. Further, the court held that the originality criterion was satisfied because the examiners did not merely copy existing work; they created the questions themselves, which involved mental labor and decision-making.

Court explained that the term “original” in copyright law does not imply that the work must contain original or inventive ideas; however, copyright law is concerned with the originality of the expression of ideas, not the ideas themselves. In the case of a “literary work,” this means the originality relates to how thoughts are expressed in writing or print. For a work to be considered original under the Act, it must originate from the author and not be copied from another work. In this case, the court observed that it was not claimed that the examination papers were copied from another source, and examiners demonstrated that they had independently thought out the questions, made notes, and used those notes to create the examination papers. Therefore, the papers were original in the sense required by the Act.

Court noted, “The objections with which I have dealt do not appear to me to have any substance, and, after all, there remains the rough practical test that what is worth copying is prima facie worth protecting. In my judgment, then, the papers set by Professor Lodge and Mr Jackson are “original literary work” and proper subject for copyright under the Act of 1911.”

2. Are examination papers ‘literary works under the meaning of the Act?

Yes

The court here determined that examination papers qualify as “literary works” within the scope of the Copyright Act of 1911. Justice Peterson provided a broad interpretation of what constitutes a “literary work” under the Act. Justice Peterson emphasized that the term “literary work” should be understood broadly and should not be confined to works of literature in the traditional sense, such as novels, poems, or essays. Instead, it encompasses any work that is expressedin writing or print, including works that convey information, ideas, or knowledge.

The court found that the creation of examination papers involves intellectual effort, skill, and judgment on the part of the examiners. The process of selecting and formulating questions requires expertise and mental labor, making the resulting papers eligible for classification as literary works.

The court notified that the purpose of the examination papers, which is to test students’ knowledge and understanding, does not disqualify them from being literary works. The papers are written documents that serve a specific function and communicate ideas in a structured manner, fulfilling the requirements of a “literary work.”

The court observed, “The papers which they prepared originated from themselves and were, within the meaning of the Act, original. It was said, however, that they drew upon the stock of knowledge common to mathematicians and that the time spent in producing the questions was small. These cannot be tests for determining whether copyright exists. If an author, for purposes of copyright, must not draw on the stock of knowledge that is common to himself and others who are students of the same branch of learning, only those historians who discovered fresh historical facts could acquire copyright for their works.”

3. Did the University Tutorial Press Ltd own the copyright in the examination papers after they were prepared, and was the copyright in the examination papers later transferred to the University of London Press?

Yes,

The court decided to answer this question by interpreting section 5 of the Copyright Act of 1911, which determines the ownership of copyright in works created by employees. The court observed that this section establishes that the author of a work is generally the first owner of the copyright, with exceptions only if the work was created under a “contract of service or apprenticeship,” where the copyright may belong to the employer. The case hinged on whether the examiners were working under a “contract of service” or a “contract for service” when preparing examination papers for the University of London.

The court referenced previous cases, such as Simmons v. Heath Laundry Co.[1] [1], to differentiate between a contract of service (implying a master-servant relationship with direct control by the employer) and a contract for service(characterized by independence and less direct control). The examiners, in this case, were paid a lump sum and had the flexibility to prepare the papers at their convenience, using their judgment and skills. They were also employed by other institutions and were not part of the university’s permanent staff. Although the university provided general guidelines, these did not equate to direct control over the examiners’ work.

The court held, “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. In my judgment, it is impossible to say that the examiner in such circumstances can be appropriately described as the servant of the university or that he prepared these papers under a contract of service.”

[1] [1910] 1 KB 543.

Anish Sinha