COPYRIGHT LAW

(CASE SUMMARY AND PRESENTATION IN LIEU OF THE 4th ASSESSMENT FOR

FULFILMENT OF EVALUATION IN THE SUBJECT)

UNIVERSITY OF LONDON PRESS LTD. v. UNIVERSITY PRESS TUTORIAL LTD

[(1916) 2 Ch 601]

SUBMITTED BY: SUBMITTED TO:

ANIRUDH SINGH MR. ROHAN THOMAS

ROLL NO. - 973 FACULTY OF LAW

B.A. LL.B. (Hons) NLU, JODHPUR

VII SEMESTER

NATIONAL LAW UNIVERSITY, JODHPUR

(SUMMER SESSION, JULY-NOVEMBER, 2015)

Name of the Parties

University of London Press Ltd (Plaintiff), AND

University Tutorial Press Ltd (Defendant)

Brief Facts of the Case

The facts of the present case are prima facie pretty straightforward.

The case dealt with examination papers which were written for the University of London

back in 1915. Under the University of London's senate's decision all examination papers

created by appointed examiners would belong to the University, aside from drawings, and the

University reserved all rights to reproduce those exams without any extra compensation to

the examiners who had written them. Subsequently examiners were appointed for the exam

period held in September of that year, among which were Mr. Jackson and Professor Lodge

who were in charge of creating the exam papers for mathematics. After the exam papers had

been created, the University entered into a contract with University of London Press,

assigning it the copyrights and rights of publication to any specific exams for a fixed period

of 6 years. University of London Press were then issued the rights to publish the exams

written in the previous year, which were then published by University of London Press in

early 1916. In the same month University Tutorial Press published exam from the previous

year as well, containing 16 out of 42 exams from January 1916, which were attained from

students rather than the published copies made by the University Press. Among the 16 exams

were three which were written by Mr. Jackson and Professor Lodge. Along with the

published exams, University Tutorial Press also published the answers to some of the

questions in those exams, including some critique of those particular questions as well.

Subsequently University of London Press sued University Tutorial Press for copyright

infringement over the published exams.

Contentions of the Plaintiff

The plaintiffs, through Mr. Jackson and Professor Lodge’s statements, argued that:

1. The two concerned teachers 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.

2. The papers which they prepared originated from themselves, although they drew upon the

stock of knowledge common to mathematicians, and that the time spent in producing the

questions was small.

3. These, however, cannot be tests for determining whether copyright exists. If an author, for

purposes of copyright, must not draw on the stock of knowledge which is common to him

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. 

4. Some of the questions, it was urged, are questions in book work, that is to say, questions

set for the purpose of seeing whether the student has read and understood the books

prescribed by the syllabus. But the questions set are not copied from the book; they are

questions prepared by the examiner for the purpose of testing the student's acquaintance with

the book, and in any case it was admitted that the papers involved selection, judgment, and

experience.

Contentions of the Defendant

The defendant contended the following:

1. The expression of thought or idea must be original in its form, and should not be copied

from the other books/materials as that would prima facie amount to ‘copyright infringement’.

2. The very fact that for copyright infringement to not occur, the work must not be copied

from another work, similarly the mathematics problems were the same old ones as were

present in the maths book which every student is familiar with.

3. They finally argued that there was no creative input or originality of ideas in terms of

creation of the mathematics problems, which would render it not original and hence would

make it an infringement of the copyright held by the book author.

Issue before the Court

The court identified only two issues facing it, with the second being a natural extension of the

first:

1. What is ‘originality’?

2. Whether the creation of the mathematics examination paper based on another author’s

recommended mathematics book amount to ‘original’ work within the definition provided

under the then Copyright Act, 1911?

Judgment of the Court

The court held that originality does not mean that the work must be an expression of

individual thought. The simple fact that the authors drew on a body of knowledge common to

mathematicians did not compromise originality. The requirement of originality, it was held,

does not require that expression be in an original or novel form. It does, however, require that

the work not be copied from another work. It must originate from the author. As such, even

though these were the same old maths problems every student is familiar with, and even

though there was no creative input, the skill, labour, and judgement of the authors was

sufficient to make the papers original literary works.

The word ``original'’ does not in this connection mean that the work must be the 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.

Decision of the Court

The court decided in favour of the University of London Press as against Universal Tutorial

Press, holding that the examination papers were ‘original’ under the then Copyright Act,

1911 and did not amount to copyright infringement.

Concept of the Doctrine of Sweat of the Brow

‘Sweat of the Brow’ is an intellectual property law doctrine primarily related to copyright.

According to this doctrine, the author of gains rights through simple diligence during the

creation of a work, such as a database, or a directory. Substantial creativity or "originality" is

not required. Under a "sweat of the brow" doctrine, the creator of a copyrighted work, even if

it is completely unoriginal, is entitled to have his effort and expense protected, and no one

else may use such a work without permission, but must instead recreate the work by

independent research or effort.

The classic example is a telephone directory. In a "sweat of the brow" jurisdiction, such a

directory may not be copied, but instead a competitor must independently collect the

information to issue a competing directory. The same rule generally applies to databases and

lists of facts.

In a traditional English idiom, the sweat of one's brow refers to the effort expended in labour,

and the value created thereby. The phrase is famously used in English translations of Genesis

3:19. The law doctrine takes its name from this idiom.

The sweat of the brow doctrine has been recognized at various times in the United Kingdom,

Canada, Australia, and elsewhere. The 1900 UK case Walter v. Lane ruled that the copyright

of an account of a speech transcribed by a reporter belonged to the newspaper he worked for

because of the effort it took to reproduce his spoken words.

However, post the decisions of the US Supreme Court and the European Court of Justice in

Feist Publications v. Rural Telephone Service and Football Dataco Ltd. & Ors v. Yahoo! UK

Ltd & Ors respectively, it is now a steady position of law that despite the significant amount

of effort taken in their preparation, such schedules cannot be protected when their

compilation is “dictated by rules or constraints which leave no room for creative freedom.”