University of London Press Ltd v University Tutorial Press Ltd

Relevant Facts

The dispute in University of London Press v. University Tutorial Press[i] revolved around the copyright ownership of examination papers set by two examiners for the University of London matriculation examinations. The examiners prepared the question papers independently and were not employees of the University. The defendant, a private publishing company, published certain examination papers prepared by the examiners along with answers and commentary, without authorisation. The plaintiff publisher brought an action for copyright infringement, claiming rights in the papers. Since no assignment of copyright had been made by the examiners, they were subsequently joined as co-plaintiffs.

Court’s Verdict

Justice Peterson addressed a fundamental question under the Copyright Act 1911[ii]: whether examination papers constituted “literary works.” The Act did not define the term but provided an expansive, non-exhaustive list that included maps, charts, and plans. The Court held that “literary work” is not synonymous with “literature.” Style, elegance, or literary quality were immaterial. Any written or printed work expressing thought or information could fall within the definition. Examination papers, though utilitarian in character, satisfied this threshold.

On originality, the Court emphasized that copyright doesn’t demand novelty of ideas but requires originality in expression. Originality was understood as work originating from the author, not copied from another. The examiners had applied judgment, discretion, and experience in selecting and framing questions, even if the subject matter was common knowledge. Their intellectual effort sufficed to vest originality in the papers. Thus, the examination papers were protected works.

The Court had to decide whether the examiners worked under a contract of service or a contract for service. Relying on Simmons v. Heath Laundry Co., it noted that the test lay in the degree of control exercised by the employer[iii]. A contract of service creates a master–servant relationship, where copyright vests in the employer. A contract for service, by contrast, leaves authorship with the creator unless rights are assigned.[iv] The examiners were independent professionals, free to prepare papers in their own time. They were therefore engaged under a contract for service. Copyright vested in them, and since no formal assignment existed, the Defendant held only an equitable right. The joinder of the examiners as co-plaintiffs cured the standing defect and enabled the Plaintiff to sue.

On infringement, the Court rejected the defence of fair dealing. The Defendant had reproduced the copyrighted papers wholesale, with only minor critical remarks and partial answers. Such reproduction could not be sheltered under the doctrine of fair use for the purposes of study or criticism. The act amounted to misappropriation of the Plaintiff’s copyright. The Court, therefore, upheld the Plaintiff University’s claim in respect of the examination papers authored by Lodge and Jackson but declined relief for other papers where no title had been established.[v]

The judgment is a landmark in the evolution of copyright jurisprudence. It hailed that “literary work” encompasses utilitarian writings such as examination papers and established that originality demands independent intellectual labour rather than novelty of ideas. It also sharpened the contract of service versus contract for service distinction, tying copyright ownership to the degree of control and independence in the working relationship. Justice Peterson’s articulation of the “test of originality” continued to shape copyright law, granting protection for works grounded in intellectual effort and authorship.

Historical Backdrop of Copyright Law in the UK

The Statute of Anne (1710)

The Statute of Anne is often regarded as the world’s first copyright law[vi]. It granted existing printed works protection for 21 years, while authors of new works were given an initial term of 14 years of exclusive printing rights, renewable for another 14 years. Infringers were penalized by forfeiting unauthorized copies and paying fines. To secure protection, books had to be registered with the Stationers’ Company, which maintained official records.

The statute was designed not to affirm authors’ proprietary rights but to regulate the book trade, mediating between the interests of authors, publishers, and readers. Its language referred to the “copy” of a book, meaning the right to reproduce and distribute, rather than the originality of the work itself. The idea of originality as the foundation of copyright would only emerge later through judicial interpretation in the 19th and 20th centuries. In 1710, copyright was conceived chiefly to promote the dissemination of knowledge through price controls, mandatory library deposits, and public access, rather than to recognize intellectual property as today.

The Copyright Amendment Act 1842 & The Copyright Act 1911

The 1842 Act marked a turning point. It introduced a post-mortem term: life of the author plus seven years, or forty-two years from first publication, whichever was longer. Thomas Noon Talfourd had proposed life plus sixty years. His proposal was defeated, notably after Macaulay’s 1841 speech calling copyright extension a 'tax on knowledge[vii].

The 1911 Act consolidated and replaced previous statutes, responding to the 1908 Berne revision. It extended copyright to sound recordings and architecture, set the term as life plus fifty years and gave copyright holders exclusive rights to reproduce, print, sell, and perform works[viii].

Evolution of Originality

Sweat Of The Brow - Walter v Lane 

In Walter v. Lane[ix], the proprietors of Times sued John Lane for reproducing Lord Rosebery’s speeches almost verbatim. Ironically, Lord Rosebery himself was not a claimant. The issue was whether the reporters could be considered 'authors' under the Copyright Amendment Act 1842. The central question was whether verbatim reports of speeches qualified as 'books' and whether the reporters’ work could attract copyright.

The House of Lords majority held that copyright did subsist in the reports, treating the reporters as authors because their work involved skill, labour, and judgment in transcribing oral delivery into written form. The case exposed two major tensions in 19th-century copyright law. The first concerned the subject matter of protection, namely whether copyright extended beyond traditional literary works to other forms of record such as speeches. The second related to the identity of the author, and whether labour-intensive but seemingly mechanical tasks, like verbatim reporting, could properly constitute “authorship”[x].

Historically, the decision was pivotal for setting a low originality threshold under the 'sweat of the brow' doctrine, where labour alone could ground copyright. The case also exposed the confusion and contradictions in late nineteenth-century copyright law. Treating reporters as authors solely for their effort highlighted the lack of a clear definition of authorship and originality under the 1842 Act. This inconsistency fueled calls for reform, influencing the Copyright Act 1911. The 1911 Act was transformative, as it codified the requirement of originality for copyright protection. It was also the first legislative instrument to use the phrase “original literary dramatic musical and artistic work.” [Section 1(1)] This is where the case of the University of London Press becomes central[xi].

Although the prevailing test in the UK still reflected the sweat of the brow approach, the concept of originality was now intertwined with it. Unlike Walter v Lane, which had focused solely on labour, the court in University Press refined the standard by holding that originality did not mean inventive or novel, but rather that the work must originate from the author. In effect, the case expanded the sweat of the brow doctrine: labour alone was no longer sufficient, there had to be an element of independent creation.

Modicum Of Creativity - Feist Publications, Inc. v. Rural Telephone Service Co.

In stark contrast, the United States follows the “modicum of creativity” standard, as exemplified by the case of Feist Publications[xii]. In this case, the plaintiff, Rural Telephone Service Company, was statutorily required to publish an annual telephone directory (the White and Yellow Pages). The Defendant, Feist Publications, compiled directories for areas outside the plaintiff’s monopoly but included entries from the plaintiff’s directory without authorization after being denied a license, prompting the plaintiff to initiate a copyright infringement suit.

At first instance, under the sweat of the brow doctrine, both the District Court of Kansas and the Court of Appeals for the Tenth Circuit sided with the plaintiff, reasoning that Rural had expended substantial effort in compiling the directory. On appeal, however, the Supreme Court rejected the sweat of the brow approach. The Court held that, to qualify as “original” under copyright law, a work must be independently created by the author and exhibit at least a minimal degree of creativity. A work may closely resemble another and still be considered original, provided it is not copied. The Court emphasized that facts themselves are not original, as they are discovered rather than created.

This standard became known as the “modicum of creativity” test, which provides that originality exists when a work reflects a sufficient degree of intellectual creativity and judgment. While the required level of creativity need not be high, a minimal degree of creative input is necessary for copyright protection. Applying the test, the Court held that a compilation of phone numbers and addresses, presenting only facts without creativity, was not copyrightable. Even in compilations that qualify, only the creative elements are protected; the underlying facts remain public domain[xiii].

This approach differs sharply from the historical UK standard. In the UK, as seen in Walter v. Lane and refined in University of London Press, copyright protection could arise from the exertion of effort, skill, and judgment, even without creative input. By contrast, the United States applies a stricter modicum of creativity standard. A work must embody some independent creative input. Mere industrious effort, however substantial, is insufficient. Even minimal creativity is required for copyright protection.

Judicial Shifts in the UK: Evolution of Originality

As discussed previously, in the 1916 position, copyright attached through the effort expended, without any requirement of artistic merit or value. This approach was gradually displaced by a new standard in 20th-century Europe. Multiple Directives, including the Software Directive[xiv], Term Directive, Database Directive[xv] and Infosoc Directive[xvi], introduced the threshold of 'author’s own intellectual creation' as the standard for granting protection. The UK, then an EU member, implemented this through the Copyright and Rights in Databases Regulations 1997 (CDPA). Section 3A of the CDPA 1988 codified the “Author’s Own Intellectual Creation Test” (AOIC Test) for databases, which in later jurisprudence extended to literary, dramatic, musical and artistic works.

The decisive moment came with the Court of Justice of the European Union (CJEU) ruling in Infopaq[xvii]. Drawing on national directives, Article 9(1) TRIPS, Article 2 Berne Convention, and Article 2 Infosoc Directive, the Court declared that copyright applies only to works that are original as the author’s own intellectual creation. This established a uniform European standard of originality known as the AOIC Test. Applied rigorously, it displaced the English “skill and labour” test with a creativity threshold across all categories of work. Infopaq confirmed that the AOIC test applies beyond databases: originality lies in whether a work embodies intellectual creation. Even eleven consecutive words satisfied this threshold, as they reflected the author’s creative expression, and hence amounted “reproduction”

In Bezpečnostní, the CJEU held that Article 1(2) Software Directive, read with Article 10(1) TRIPS, protects only a program’s expression in source code. A graphic user interface is excluded, as it merely facilitates interaction. However, the Court stressed that copyright applies where the subject matter is the author’s own intellectual creation, as affirmed in Infopaq and under the Infosoc Directive. A GUI may therefore be protected as a work if its arrangement and configuration reflect creative choices and are not dictated solely by technical function[xviii].  This approach was further reinforced in Bezpečnostní, where the CJEU made clear that even subject matter excluded from the Software Directive may still fall within the InfoSoc Directive if it embodies intellectual creation. The effect was twofold: Firstly, it dismantled the rigid statutory categories that define protection under the CDPA. At the same time, it heightened the threshold of originality by demandin[xix]g creativity, not mere effort or labour. English courts confronted this shift in Meltwater.

The Court of Appeal, echoing the CJEU, held that headlines and short extracts could be protected if they embodied the intellectual creation of the author. However, it also insisted that the traditional English test for literary, dramatic, musical, and artistic works had not been displaced[xx]. The result was an uneasy coexistence between EU and common law standards. The Court claimed the AOIC test aligned with the “skill and labour” standard, but this alignment was illusory. AOIC narrows protection, demanding the individual’s own intellectual effort and independent creation.

Finally, this jurisprudence culminated in Football Dataco. The CJEU ruled that databases attract copyright only where selection or arrangement reflects the author’s intellectual creation. Mere skill, labour, or investment in creating the data, such as scheduling fixtures does not suffice. Copyright protects only the structure, not the data itself. The judgment stressed the author’s “formative freedom” and “free and creative choices,” requiring the work to carry the personal imprint of the author[xxi]. Taken together, these cases transformed AOIC from a narrow database requirement into the central originality standard for all works. The CJEU recast copyright around creativity and personal imprint while rejecting the Sweat of Brow Doctrine. Although the UK left the EU on 31 January 2020, the European Union (Withdrawal) Act 2018 preserved existing EU legislation and CJEU judgments in domestic law unless repealed. The Act also authorises ministers to adapt retained EU law by removing references to the EU and its member states, ensuring continuity in domestic law[xxii].

If University of London Press v University Tutorial Press were decided today under the AOIC standard, the result would be narrower. In 1916 the court relied on the “sweat of the brow” test, granting originality to exam papers on the basis of skill, labour, and judgment. However, under AOIC, copyright requires creative choice and the personal imprint of the author’s intellect. Mechanical effort or strict adherence to a syllabus would not qualify. Following the reasoning in Football Dataco, protection would extend only to those papers where the framing or arrangement of questions reflects formative freedom and creative decision-making. Purely functional or formulaic questions would fall outside copyright. Meltwater reinforces this by stressing that protection ruminates on intellectual creation, not effort alone. Under AOIC, the blanket originality once conferred on all exam papers would give way to a case-by-case inquiry. The decisive issue would be whether the examiner’s questions carry a personal imprint. It must be proved that the paper is truly the product of intellectual creation and that the examiners were able to imprint their personal touch.

DB Modak Benchmark: India’s Approach to Copyright

In the early 20th century, Indian copyright law followed the Sweat of Brow doctrine as framed in University of London Press. Courts repeatedly upheld labour and skill as the basis of originality. In Gopal Das v Jagannath, the Court held that a compiler, even without absolute originality, could claim protection if sufficient effort and correction produced a distinct result[xxiii]. V. Govindan v EM Gopalkrishna Kone affirmed that even a small degree of originality, backed by skill and labour, was enough[xxiv]. The Delhi High Court in Burlington Home Shopping reinforced this approach, protecting a customer database on the ground that its compilation demanded time, labour and skill, even if sourced from public records[xxv]. These rulings show that Indian courts, in line with University of London Press, equated originality with diligence, not creativity.

Eastern Book Company v DB Modak marked a turning point in Indian copyright law. EBC published law reports including judgements, headnotes, cross references, and other editorial inputs, while the respondents produced software packages containing full texts of Supreme Court judgments. The issue was whether EBC’s editorial contributions constituted “original literary work” under the CRA. The Supreme Court held that copyright in derivative works requires more than mere labour or capital, it demands the exercise of independent skill and judgment. The Court rejected both the high threshold of “Modicum of Creativity” and the low “Sweat of Brow” standard. Rather, the Court adopted the CCH Canada test of “skill and judgment.” Skill must be substantial, not trivial, and judgment involves going beyond mere expenditure of resources. Applying this, the Court found that copy-edited judgments lacked originality, as the variations were minor and did not reflect genuine skill or judgment. However, editorial inputs such as headnotes, para numbering, and comments on concurring or dissenting opinions were protected. DB Modak thus firmly established that mere labour or machine-created compilations cannot claim copyright; protection hinges on substantive skill and judgment[xxvi]. 

DB Modak continues to guide Indian copyright law. In Ustad Wasifuddin Dagar the issue was whether the Dhrupad composition Shiva Stuti had been copied in the film song Veera Raja Veera. The Court applied DB Modak, requiring skill and judgment with minimal creativity. The plaintiff claimed originality in the choice of swaras, the use of taal, and the structure of the piece. The defendants argued that ragas and dragged notes were in the public domain and fell short of the threshold. The Court held that while ragas cannot be owned, the composition as a whole bore originality. It concluded that Veera Raja Veera had copied the essence of Shiva Stuti, and infringement was established[xxvii]. The case reaffirmed the DB Modak principle that originality does not require novelty but arises from the author’s skill, judgment, and creative arrangement, allowing copyright protection even for classical compositions.

Conclusion: University Tutorial Press Through an Indian Lens

If University Tutorial Press had arisen in India, the question of whether examination papers are “copyrightable” would hinge on their classification as “original”. Examination papers fall within “literary works” under Section 2(o) and Section 13(1)(a) of the Copyright Act, 1957 (CRA). DB Modak sets the threshold of originality through the skill and judgement test. The issue is whether examiners exercised intellectual effort, skill, judgment, and creativity in selecting questions.

On examining the matriculation paper, most questions were mathematical[xxviii]. Mathematical questions in examination papers are usually unique rather than copied. Since the aim is to test formulae and application, not a fixed answer. This differs from history or social science questions which often yield standard responses. This supports a degree of originality in the creation of the paper. Today, even mathematical textbooks such as RD Sharma are protected by copyright. The requirement of fixation is also satisfied, as the questions were embodied in the examination paper. Hence, as the examination papers are both fixated and original, they are copyrightable under Section 13(1)(a).

Now, applying the 4-factor test as highlighted in Authors Guild v Google[xxix]:

1. Purpose and Character of Use: The reproduction of examination papers with answers keys and commentary is not transformative. Rather, it is wholesale republication which merely repackaged the original papers for commercial exploitation

2. Nature of Copyrighted Work: Copying the intellectual effort of the examiners undermines their creative character.

3. Amount and Substantiality of Use: Defendant copied entire examination papers and not snippets or extracts. The heart of the work was appropriated, weighing heavily against fair use

4. Effect on Market: Defendant’s publication directly supplanted the market for original examination papers.

An ordinary observer, on comparing the Defendant’s book with the University’s papers, would clearly see it as a copy, thereby establishing substantial similarity (Test of Substantial Similarity)[xxx]. Accordingly, there is clear copyright infringement under Section 51 CRA, as the two works were substantially similar. No defence under Section 52 CRA (Fair Dealing) is available, since the reproduction was wholesale republication, not for research, criticism, review, or parody. On a side-by-side comparison, substantial similarity between the Defendant’s publication and the original examination papers would amount to infringement.

Author: - Gauri Yadav, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[i] University of London Press v. University Tutorial Press [1916] 2 Ch. 601

[ii] Copyright Act 1911 (1 & 2 Geo 5 c 46) (original enacted version), UK Legislation, https://www.legislation.gov.uk/ukpga/Geo5/1-2/46/enacted accessed 27 January 2026.

[iii] Simon Deakin, The Contract of Employment: A Study in Legal Evolution (ESRC Centre for Business Research, University of Cambridge, Working Paper No 203, June 2001) https://www.jbs.cam.ac.uk/wp-content/uploads/2023/05/cbrwp203.pdf accessed 18th January 2026.

[iv] ibid 2

[v] Australian Taxation Office, University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 https://www.ato.gov.au/law/view/print?DocID=JUD%2F*1916*2CH601%2F00001&PiT=99991231235958 accessed 18^th January 2026.

[vi] An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies (Statute of Anne, 1710) https://avalon.law.yale.edu/18th_century/anne_1710.asp accessed 18th January 2026.

[vii] Deazley R, ‘Commentary on Copyright Amendment Act 1842’ (Primary sources on copyright - record viewer) https://www.copyrighthistory.org/cam/tools/request/showRecord.php?id=commentary_uk_1842 accessed 22 January 2026

[viii] Wilson Gunn, 'History of Copyright' https://www.wilsongunn.com/history/history_copyright.html accessed 22 January 2026.

[ix] Walter v Lane (1900) AC 539 (HL)

[x] Barbara Lauriat, Walter v. Lane (1900) (SSRN, 2016)

[xi] Ibid

[xii] Feist Publications, Inc v Rural Telephone Service Co (1991) 499 US 340

[xiii] IIPRD, ‘UK’s Sweat of the Brow Doctrine’ (IIPRD, 16 April 2019) https://iiprd.wordpress.com/tag/uks-sweat-of-the-brow-doctrine/ accessed 20 January 2026.

[xiv] European Parliament and Council, ‘Directive 2009/24/EC on the Legal Protection of Computer Programs’ (Legislation.gov.uk) https://www.legislation.gov.uk/eudr/2009/24/body accessed 25 September 2025.

[xv] WIPO, ‘Directive No. 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases’ https://www.wipo.int/wipolex/en/text/126788 accessed 20 January 2026.

[xvi] EUR-Lex, ‘Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society’ https://eur-lex.europa.eu/eli/dir/2001/29/oj/eng accessed 20 January 2026.

[xvii] Infopaq International A/S v Danske Dagblades Forening (Case C-5/08) [2009] ECR I-6569.

[xviii] Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury (Case C-393/09) [2010] ECR I-13971.

[xix] Latham & Watkins LLP, ‘European Jurisprudence and Its Impact on Copyright Protection’ (Lexology, 20 March 2013) https://www.lexology.com/library/detail.aspx?g=ecaa7aea-971c-4b54-b500-eccb75b20a43 accessed 20 January 2026.

[xx] Newspaper Licensing Agency v Meltwater [2011] EWCA Civ 890, WIPO Lex https://www.wipo.int/wipolex/en/judgments/details/1492 accessed 22 January 2026.

[xxi] Football Dataco Ltd v Yahoo! UK Ltd (Case C‑604/10) [2012] ECR I‑0000 https://curia.europa.eu/juris/document/document.jsf?text=&docid=119904&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=21366523 accessed 22 January 2026.

[xxii] Luke McDonagh, UK Patent Law and Copyright Law after Brexit: Potential Consequences (Centre for International Governance Innovation, November 2017) https://www.cigionline.org/static/documents/documents/Brexit%20Series%20Paper%20no.3_0.pdf accessed 22 January 2026

[xxiii] Gopal Das v Jagannath Prasad and Anr (10.01.1938 - ALLHC) MANU/UP/0148/1938, paras 2, 6.

[xxiv] Sparsh Sharma, 'Originality for Copyright Protection in Literary Works: After EBC v DB Modak' (2022) 27(4) Journal of Intellectual Property Rights 266, 266–276

[xxv] Lakshmikumaran & Sridharan, 'Infringement Analysis in Copyright Law' (14 January 2011) https://www.lakshmisri.com/newsroom/archives/infringement-analysis-in-copyright-law/ accessed 20 January 2026.

[xxvi] Eastern Book Company and Ors. vs. D.B. Modak and Ors. (12.12.2007 - SC) MANU/SC/4476/2007

[xxvii] Ustad Faiyaz Wasifuddin Dagar v A.R. Rahman and Ors [2025] MANU/DE/2901/2025, paras 84, 93.

[xxviii] Centre for Intellectual Property and Information Law, 'University of London Press v University Tutorial Press [1916] 2 Ch 601' (Cambridge University, Virtual Museum) https://www.cipil.law.cam.ac.uk/virtual-museum/university-london-press-v-university-tutorial-1916-2-ch-601 accessed 20 January 2026. 

[xxix] Authors Guild v Google, Inc., No 13-4829 (2d Cir 16 October 2015) Justia https://law.justia.com/cases/federal/appellate-courts/ca2/13-4829/13-4829-2015-10-16.html accessed 22 January 2026.

[xxx] R.G. Anand v M/S Delux Films & Ors (1978) MANU/SC/0256/1978.