University of London Press Ltd v University Tutorial Press Ltd
| Jurisdiction | England & Wales |
| Date | 1916 |
| Year | 1916 |
| Court | Chancery Division |
Copyright - Examination Papers - “Original literary work” - “Contract of service” - Assignment - Right to sue - “Fair dealing” - Infringement -
Papers set by examiners are “literary work” within the meaning of the Copyright Act, 1911.
Examiners 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 to assign the copyright, and by deed purported to assign it, to the plaintiff company. After the examination the defendant company issued a publication containing a number of the examination papers (including three which had been set by two examiners who were co-plaintiffs), with criticisms on the papers and answers to questions. In an action for infringement of copyright:—
Held, that copyright subsisted in the examination papers as “original literary work” within the meaning of s. 1, sub-s. 1, of the Copyright Act, 1911; that the copyright vested in the examiners; that the examiners were not “in the employment” of the University “under a contract of service” within the meaning of s. 5, sub-s. 1 (b); that the examiners were subject to an obligation under their appointment to assign the copyright to the University or as the University might direct; that, the University having assigned its rights to the plaintiff company, the plaintiff company was equitably entitled to the copyright; that the plaintiff company, having joined two of the examiners as co-plaintiffs, could sue for infringement of copyright in the papers set by the two examiners, but must fail as to the papers set by the other examiners; and that the defendant company, having failed to bring itself within the protection of s. 2, sub-s. 1 (i.), had infringed the copyright in the papers set by the co-plaintiffs.
WITNESS ACTION.
On February 24, 1915, the Senate of the University of London passed a resolution that “it be made a condition of the appointment of every examiner that any copyright possessed by him in examination papers prepared by him for the University shall be vested in the University, provided that the foregoing shall not apply to copyright in drawings; and that it be a further condition of such appointment that the University will raise no objection to the use by any such examiner, without payment, of the material of any paper set by him for any purpose except the republication of such paper as a whole, and that the University shall, without payment, have the right of reproduction of any drawing included in such paper.” Examiners were subsequently appointed for the matriculation examinations to be held in September, 1915, and January and June, 1916. Among the examiners so appointed were Professor Lodge and Mr. Jackson, who were the examiners for the purpose of setting the examination papers in mathematics. The appointment was communicated to the examiners by letter of May 19 informing them that they “were this day elected to the office of examiner in mathematics” – or as the case might be – “in this University for the matriculation examinations in September, 1915, and January and June, 1916.” Enclosed was a copy of the resolution as to copyright. The duties and salaries of the examiners were fixed. The examiners were not on the staff of the University. They were employed, for the particular examinations for which they were appointed, to prepare the examination papers on the subjects in respect of which they were respectively appointed. The papers were prepared in the examiners' own time. They were free, subject to a syllabus and having regard to the knowledge required from students, to choose their own questions. They perused the answers of students and awarded marks. They were paid a lump sum as salary. They were not bound to give their services exclusively to the London University. The examiners thus appointed prepared examination papers for September, 1915, and January, 1916. On July 26, 1915, the University entered into an agreement with the University of London Press, Limited, the plaintiff company, by which it was agreed that as and when after August 31, 1915, the University should from time to time prepare and issue or cause to be prepared and issued any examination papers (other than papers not material to this report) the University agreed (subject to the provisions and conditions thereinafter contained) from time to time to assign and make over to the Press Company all such copyright and rights of publication (if any) as the University might have in such respective papers (other than those as aforesaid) for the period of six years from the date of publication thereof respectively, with a proviso for a further period in absence of notice. By an indenture of January 13, 1916, made between the University and the University of London Press, Limited, in pursuance of the agreement of July 26, 1915, and for the consideration mentioned, the University purported to assign to the Press Company all the copyright and rights of publication of the University in the papers of which particulars were contained in a schedule for the period and subject to the terms and conditions contained in the agreement. The schedule included the matriculation examination for January, 1916. The University of London Press, Limited, proceeded in January to publish the examination papers for the examination of January, 1916. In the same month the defendant company, the University Tutorial Press, Limited, issued a publication in which were included sixteen out of forty-two matriculation papers of January, 1916. The papers were not copied from the publication of the University of London Press, Limited, but were taken from copies of the examination papers supplied by students. Amongst the sixteen papers taken were three which were set by Professor Lodge and Mr. Jackson, one in arithmetic and algebra, another in geometry, and a third in more advanced mathematics. In addition to the papers so published the University Tutorial Press, Limited, published in the same book the answers to the questions in some of the papers, including the arithmetic and algebra paper and the geometry paper, but did not publish any answers to the questions in more advanced mathematics; and, further, made some criticisms on the way in which the papers had been set. On February 24, 1916, the University of London Press, Limited, commenced this action against the Tutorial Press, Limited, for infringement of copyright, and, objection being taken that the plaintiff company was not entitled to sue, Professor Lodge and Mr. Jackson were, in the course of the proceedings, joined as co-plaintiffs.
Clayton, K.C., and MacSwinney, for the plaintiffs. The title of the plaintiff company depends on the agreement and the assignment. The agreement alone amounts to a good equitable assignment – Ward, Lock & Co. v. LongF1 – satisfying s. 5, sub-s. 2, of the Copyright Act, 1911. The University had a good title to the copyright because the examiners were in the employment of the University under a “contract of service” and the papers were composed or compiled in the course of their employment, within s. 5, sub-s. 1 (b): Byrne v. Statist Co.F2 They took up their work, with notice of the condition that the copyright was to belong to the University, without dissent. In any case, Professor Lodge and Mr. Jackson are co-plaintiffs and the action can be maintained in respect of their examination papers. The examination papers are subject-matter of copyright, as “original literary work,” within s. 1, sub-s. 1. “Literary work” includes “compilations”: s. 35, sub-s. 1. The setting of the papers entailed the exercise of brainwork, memory, and trained judgment, and even the selection of passages from other authors' works involved careful consideration, discretion, and choice. They constituted original literary work: Trade Auxiliary Co. v. Middlesborough and District Tradesmen's Protection AssociationF3; Walter v. LaneF4; Hollinrake v. Truswell.F5
Maugham, K.C., and Macgillivray, for the defendants. The plaintiff company has no copyright. To maintain the action the plaintiff company must be either the author, the owner under s. 5, sub-s. 1 (b), or the assignee under s. 5, sub-s. 2. The plaintiff company does not come under the first or the third description, and the authors of the papers were not...
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