University of London Press, Limited v. University Tutorial Press, Limited. Chancery Division Ch D Peterson J. PETERSO J.

after stating the facts. The first question that is raised is, Are these examination papers subject of copyright? Sect. 1, sub-s. 1, of the Copyright Act of 1 11 provides for
copyright in "every original literary dramatic musical and artistic work," subject to certain conditions which for this purpose are immaterial, and the question is, therefore, whether these examination papers are, within the meaning of this Act, original literary works. Although a literary work is not defined in the Act, s. !" states what the phrase includes; the definition is not a completely comprehensive one, but the section is intended to show what, amongst other things, is included in the description "literary work," and the words are " !iterary work includes maps, charts, plans, tables, and compilations." "t may be difficult to define "literary work" as used in this Act, but it seems to be plain that it is not confined to "literary work" in the sense in which that phrase is applied, for instance, to #eredith s novels and the writings of $obert !ouis %tevenson. "n speaking of such writings as literary works, one thinks of the quality, the style, and the literary finish which they exhibit. &nder the Act of '()*, which protected "books," many things which had no pretensions to literary style acquired copyright; for example, a list of registered bills of sale, a list of foxhounds and hunting days, and trade catalogues; and " see no ground for coming to the conclusion that the present Act was intended to curtail the rights of authors. "n my view the words "literary work" cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high. +he 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 matter. ,apers set by examiners are, in my opinion, "literary work" within the meaning of the present Act.

Assuming that they are #$iterary %or&,# the question then is %hether they are origina$. The %ord #origina$# does not in this connection mean that the %or& must be the expression of origina$ or in'enti'e thought. Copyright Acts are not concerned %ith the origina$ity of ideas, but %ith the expression of thought, and, in the case of #$iterary %or&,# %ith the expression of thought in print or %riting. The origina$ity %hich is required re$ates to the expression of the thought. (ut the Act does not require that the expression *609 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. "n the present case it was not suggested that any of the papers were copied. ,rofessor !odge and #r. .ackson 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. +he papers which they prepared originated from themselves, and were, within the meaning of the Act, original. "t 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. +hese cannot be tests for determining whether copyright exists. "f an author, for purposes of copyright, must not draw on the stock of knowledge which 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. "f time expended is to be the test, the rapidity of an author like !ord /yron in producing a short poem might be an impediment in the way of acquiring copyright, and, the completer his mastery of his subject, the smaller would be the prospect of the author s success in maintaining his claim to copyright. %ome 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. /ut 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. +his objection has not, in my opinion, any substance; if it had, it would only apply to some of the questions in the elementary papers, and would have little, if any, bearing on the paper on advanced mathematics. +hen it was said that the questions in the elementary papers were of common type; but this only means that somewhat similar questions have been asked by other examiners. " suppose that most elementary books on mathematics may be said to be of a common type, but that fact would not give impunity to a predatory infringer. +he book and the papers alike originate from the author and are not copied by him from another book or other papers. +he objections with which " *610 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. "n my judgment, then, the papers set by ,rofessor !odge and #r. .ackson are "original literary work" and proper subject for copyright under the Act of '0''.

The next question is, )n %hom did the copyright in the examination papers 'est %hen they had been prepared? This prob$em must be so$'ed by the determination of the effect of s. " of the Act of '0''. +he author, by that section, is the first owner of the copyright,
subject only to the exceptions contained in the Act. +he only relevant exception is to be found in s. ", sub-s. 1 *b+. 12is !ordship read the section so far as relevant 134567, and continued87 +he examiners were no doubt employed by the &niversity of !ondon, and the papers were prepared by them in the course of their employment. /ut, in order that s. 9, sub-s. ' :b;, should be applicable, the examiners must have been "under a contract of service or apprenticeship"; and accordingly the plaintiffs contend that the papers were prepared by the examiners in the course of their employment under a contract of service, and that, therefore, the copyright in the papers belonged to the &niversity of !ondon. +he meaning of the words "contract of service" has been considered on several occasions, and it has been found difficult, if not impossible, to frame a satisfactory definition for them. "n Simmons '. ,eath -aundry Co. 1345<7, in which the meaning of these words in the =orkmen s >ompensation Act, '0?6, was discussed, 3letcher #oulton !... pointed out that a contract of service was not the same thing as a contract for service, and that the existence of direct control by the *611 employer, the degree of independence on the part of the person who renders services, the place where the service is rendered, are all matters to be considered in determining whether there is a contract of service. As /uckley !... indicated in the same case, a contract of service involves the existence of a servant, and imports that there exists in the person serving an obligation to obey the orders of the person served. A servant is a person who is subject to the commands of his master as to the manner in which he shall do his work. A person who is employed by a company at a fixed annual salary to supply weekly articles for a periodical is not a servant within s. *?0 of the >ompanies >onsolidation Act, '0?(8 )n re (eeton . Co. 1345(7; nor can a visiting physician of a hospital who, for an annual salary, undertakes to exercise his judgment, skill, and knowledge in determining whether a patient can safely be discharged be properly described as a servant8 /'ans '. -i'erpoo$ Corporation. 134507"n (yrne '. Statist Co. 134)?7 the meaning of the words in s. " of the Copyright Act, 1 11, was considered in the case of a person, permanently employed on the editorial staff of a newspaper, who was specially employed by the proprietors to translate and summari@e a speech. 2e did the work in his own time and independently of his ordinary duties, and it was held that in doing so he did not act under a contract of service. "n the present case the examiner was employed to prepare the papers on the subject in respect of which he was elected or appointed examiner. 2e had to set papers for %eptember, '0'9, and .anuary and .une, '0'6, and his duty also comprised the perusal of the students answers, and the consideration of the marks to be awarded to the answers. 3or this he was to be paid a lump sum. 2e 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. "t is true that the &niversity 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. ,rofessor !odge and #r. .ackson were *612 regularly employed in other educational establishments and were not part of the staff of the !ondon &niversity, and it was not suggested that the other examiners were on the staff of the &niversity. "n my judgment it is impossible to say that the examiner in such circumstances can be appropriately described as the servant of the &niversity, or that he prepared these papers under a contract of service.

01!2 Copyright Act, 1 11, s. "8 ":'.; %ubject to the provisions of this Act, the author of

a work shall be the first owner of the copyright therein8 ,rovided that .... :b; where the author was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, maga@ine, or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, maga@ine, or similar periodical."

The p$aintiffs3 next contention %as that the copyright in the papers 'ested at once in the 4ni'ersity by 'irtue of the fact that the examiners %ere emp$oyed on the terms that the copyright shou$d be$ong to the 4ni'ersity, %ho thereby became equitab$e assignees of the copyright5 and 6race '. 1e%man 701819 %as cited in support of this argument. 6race '. 1e%man 7018:9 seems to be one of those cases %hich under the present Act %ou$d come %ithin s. ", sub-s. 1 *b+, but, ho%e'er that may be, the present question must be determined by the pro'isions of the Act of 1 11. Sect. " declares that, subject to the
provisions of the Act, the author shall be the first owner of the copyright, and that every assignment of a copyright must be in writing, signed by the owner or his agent. +he only exceptions from the rule that the author is the first owner are the cases mentioned in s. ", sub-s. 1 *a+ and *b+, which do not cover the present case. +he examiner was the first owner, and he has not assigned the copyright in writing signed by him or his agent. +he copyright therefore remains in the examiners, subject to the obligation under the contract of employment to assign it to the &niversity or as it may direct. +he copyright was vested in the examiners, but the &niversity was equitably entitled to it subject to the restrictions contained in the pro'iso to s. ", sub-s. :. +he &niversity assigned its rights to the plaintiff company, which is now equitably entitled to the copyright. "n order to sue for infringement of the copyright, the plaintiff company must either obtain a proper assignment of the copyright or join the examiners, who are the legal owners of the copyright, as parties. "t has not obtained an assignment, but it has in the course of the action joined ,rofessor !odge and #r. .ackson as co-plaintiffs. +he plaintiffs can therefore sue for infringement of the copyright in the papers prepared by ,rofessor !odge and #r. .ackson, but, in the absence of the other examiners, the action fails *613 in respect of the copyright in the papers which were composed by them.

The $ast question is %hether the defendants ha'e infringed the copyright in the papers prepared by ;rofessor -odge and <r. =ac&son. /xamination papers are usefu$ for

educationa$ purposes, and, as ;rofessor -odge said, teachers are #'ery g$ad to get copies of o$d questions for use in tuition,# and it is important that students shou$d get the questions for purposes of #instruction.# This 'ie% %as common to the %itnesses on both sides. >ecogni?ing this demand, the p$aintiff company pub$ished the matricu$ation papers. @ith the same object in 'ie%, the defendants pub$ished the #-ondon <atricu$ation Airectory,# %hich contains sixteen of the matricu$ation papers for =anuary, 1 12, inc$uding the papers on arithmetic and a$gebra, geometry, and more ad'anced mathematics, set by ;rofessor -odge and <r. =ac&son. The defendants3 pub$ication a$so inc$udes, amongst others, ans%ers to the questions in the papers on arithmetic and a$gebra and geometry, but does not pro'ide so$utions for the prob$ems in the paper on more ad'anced mathematics5 and it a$so comprises a short criticism of the construction of the 'arious papers, %hich appears to be intended for the guidance of future examiners rather than for the edification of possib$e students. These criticisms, ho%e'er, appear to me to be of 'ery $itt$e moment. The defendants on these facts contend that their pub$ication of the three papers set by ;rofessor -odge and <r. =ac&son is a fair dea$ing %ith them for the purposes of pri'ate study %ithin s. :, sub-s. 1, of the Act of 1 11, and is therefore not an infringement of copyright. )t cou$d not be contended that the mere repub$ication of a copyright %or& %as a #fair dea$ing# because it %as intended for purposes of pri'ate study5 nor, if an author produced a boo& of questions for the use of students, cou$d another person %ith impunity repub$ish the boo& %ith the ans%ers to the questions. 1either case %ou$d, in my judgment, come %ithin the description of #fair dea$ing.# )n the present case the paper on more ad'anced mathematics has been ta&en %ithout any attempt at pro'iding so$utions for the questions, and the on$y %ay in %hich the defendants ha'e dea$t %ith this paper is by appropriating it, except that there are e$e'en $ines of criticism of it, di'iding the questions into easy, troub$esome, and difficu$t questions. *614 +o the questions in the other two papers answers are provided. /oth
publications are intended for educational purposes and for the use of students, and in my judgment the defendants have failed to bring themselves within the protection of s. :, sub-s. 1 *i.+, of the Act.

) am therefore of opinion that the p$aintiffs ought to succeed so far as the questions prepared by ;rofessor -odge and <r. =ac&son for the examination in =anuary, 1 12, are concerned, and that the present action, so far as it re$ates to the papers set by the other examiners, fai$s.