Copyright in Examination Question Papers in India

Copyright in Examination Question Papers in India: An Analytical Review

Introduction

Examination question papers are pivotal instruments in the educational assessment framework in India. Their creation involves intellectual effort, skill, and judgment. Consequently, questions regarding the subsistence and ownership of copyright in these papers frequently arise, leading to significant legal discourse. This article aims to provide a comprehensive analysis of the legal status of copyright in examination question papers under the Indian Copyright Act, 1957, drawing upon relevant statutory provisions and key judicial pronouncements. The discussion will navigate the determination of question papers as copyrightable subject matter, the principles governing authorship and first ownership, and the implications for examining bodies and publishers.

Subsistence of Copyright in Question Papers

The foundational issue in any copyright claim is whether the subject matter in question is eligible for protection under the Copyright Act, 1957 (hereinafter "the Act"). For examination question papers, this involves determining if they qualify as "original literary works."

Are Question Papers "Original Literary Works"?

Section 13(1)(a) of the Act states that copyright shall subsist in "original literary, dramatic, musical and artistic works." The term "literary work" is defined inclusively in Section 2(o) of the Act to include "tables and compilations." Indian courts have consistently held that examination question papers fall within this definition.

In Agarwala Publishing House, Khurja v. Board of High School and Intermediate Education U.P. Allahabad (1966 SCC OnLine All 124, Allahabad High Court, 1966) (hereinafter "Agarwala Publishing House (1966)"), the Allahabad High Court affirmed that "literary works" are not confined to works of literature in the commonly understood sense but include all works expressed in writing, irrespective of their literary merit. This interpretation was supported by the definition in Section 2(o) and the precedent set in University of London Press Limited v. University Tutorial Press Limited (1916 2 Ch. D. 601), which held that question papers were "work which is expressed in print or writing, irrespective of the question whether the quality or style is high."

The requirement of "originality" under Section 13 does not imply novelty of ideas but that the work must originate from the author and not be a mere copy of another work. It must be the product of the author's labor, skill, and judgment. The Allahabad High Court in Agarwala Publishing House (1966), and subsequently the Delhi High Court in Rupendra Kashyap v. Jiwan Publishing House (1996 SCC OnLine Del 466) (hereinafter "Rupendra Kashyap (1996)"), reiterated this, stating that question papers are "original" as they are not copied but originate from the author, involving selection, judgment, and experience. The Patna High Court in Jagdish Prasad Gupta v. Parmeshwar Prasad Singh (1965 SCC OnLine Pat 82) (hereinafter "Jagdish Prasad Gupta (1965)") also concurred that question papers were original literary works. Mahinder Narain, J. in an earlier order in Rupendra Kashyap v. Jiwan Publishing House (P) Ltd. & Ors. (1993 SCC OnLine Del 660) (hereinafter "Rupendra Kashyap (1993)") described question papers as a "collection of questions which are required to be answered by each examinee... As each question is stringing together of words... creating 'expression'... the questions having come into being on account of skill and labour of the person who prepared the questions, each question would be copyrightable matter, and a compilation of questions which make up the question paper is copyrightable subject matter."

The Supreme Court's decision in Eastern Book Company v. D.B. Modak (2008 1 SCC 1) (hereinafter "Eastern Book Company (2007)"), while dealing with law reports, refined the understanding of originality. It rejected the "sweat of the brow" doctrine, emphasizing that a "modicum of creativity" is necessary. Originality requires the work to be "somewhat different in character... by virtue of selection, co-ordination or arrangement of pre-existing data." This standard is pertinent to question papers, which often involve the selection and arrangement of questions, demanding skill and judgment beyond mere mechanical compilation, as noted in Syndicate Of The Press Of The Universtiy Of Cambridge On Behalf Of The Chancellor, Masters And School v. B.D Bhandari & Anr. S (Delhi High Court, 2011) (hereinafter "Syndicate Of The Press (2011)").

Authorship and First Ownership of Copyright

Once it is established that copyright subsists in question papers, the next critical question is determining who owns this copyright. Section 17 of the Act governs the first ownership of copyright.

The General Principle: Author as First Owner

The default rule under Section 17 of the Act is that "the author of a work shall be the first owner of the copyright therein." The "author," in relation to a literary work, is the person who creates the work. In the context of question papers, the author is the natural person or persons who set or compile the questions. As Mahinder Narain, J. observed in Rupendra Kashyap (1993), "The author of the examination paper is a person who has compiled the questions. The persons who does this compiling, is a natural person, a human being, and not an artificial person." This view was echoed in Satish Kumar v. Khushboo Singh & Ors. (Delhi High Court, 2019), which emphasized that a juristic person cannot be an author, though it can be an owner of copyright through other means.

Exceptions and Contractual Arrangements

Section 17 provides certain exceptions to the general rule. For examining bodies, the relevant provisions include:

  • Work Made in Course of Employment (Section 17(c)): If a literary work is made by the author in the course of his employment by the proprietor of a newspaper, magazine, or similar periodical under a contract of service or apprenticeship, for the purpose of publication in that periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical. For other purposes, the author retains copyright. More broadly, if the paper-setter is a full-time employee of the examining body and prepares the question paper as part of their duties, the examining body (employer) would be the first owner of the copyright, unless there is an agreement to the contrary. The Supreme Court in Institute Of Chartered Accountants Of India v. Shaunak H. Satya And Others (2011 8 SCC 781) (hereinafter "ICAI (2011)") noted that paper setters who are employees of ICAI would have ICAI as the first owner.
  • Works of Public Undertakings (Section 17(d)): This provision, formerly Section 17(dd) (as referenced in Rupendra Kashyap (1996)), states that in the case of a work made or first published by or under the direction or control of a public undertaking, such public undertaking shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. Examining bodies like the Central Board of Secondary Education (CBSE) could potentially fall under this category, as argued in Rupendra Kashyap (1996) where the Delhi High Court found CBSE to be the first owner under this provision.
  • Assignment of Copyright (Section 18): An author can assign the copyright to another person or entity. Such an assignment must be in writing and signed by the assignor or by his duly authorized agent. This is a common method by which examining bodies acquire copyright from paper-setters who are not their employees. The ICAI (2011) case explicitly mentions that ICAI requires paper-setters (other than employees) to assign their copyright in question papers and solutions to ICAI, using a standard communication for this purpose.

Judicial Scrutiny of Examining Bodies' Claims to Copyright

Courts have carefully examined claims by educational boards asserting copyright ownership.

In Agarwala Publishing House (1966), the Allahabad High Court ruled that the copyright in question papers set for the High School and Intermediate examinations belonged to the paper-setters, not the Board. The Board had introduced a regulation declaring that copyright vested in it. The Court held that the Board could not claim a right it did not possess under the Copyright Act, 1957, and thus the regulation was invalid. The Court noted there was no assignment or contract term divesting the paper-setters of their copyright. Broome, J. observed that while the regulation might be within the Board's power under the Intermediate Education Act as ancillary to conducting examinations, "If under the law as it stands the Board is not the owner of the copy right... it can certainly be argued that the impugned notification changes the law by declaring that copyright vests in the Board."

Similarly, in Jagdish Prasad Gupta (1965), the Patna High Court dealt with a complaint dismissed because the complainant failed to show that the Bihar School Examination Board had copyright. The Magistrate found that the paper-setters were the authors and first owners. The High Court noted that while the Board had the power to make regulations regarding the appointment and duties of examiners (under Section 17(d) of the Bihar School Examination Board Act, 1952), and could have laid down a term for copyright vesting in the Board, there was no evidence that the Board had acquired copyright from the authors. The mere printing of "copyright reserved" on question papers was deemed insufficient.

The Delhi High Court in Rupendra Kashyap (1993) initially opined that CBSE, not being a natural person, could only claim copyright if it established a contract with paper-setters for the copyright to vest in CBSE. However, in the subsequent order in Rupendra Kashyap (1996), Lahoti, J. found that CBSE was the first owner of the copyright, relying on Section 17(dd) (now Section 17(d)) of the Act, which pertains to works made under the direction or control of a public undertaking. This highlights that the specific status of the examining body and its contractual relationship with paper-setters are crucial.

Enforcement and Limitations

The enforcement of copyright in question papers and the limitations thereto also merit consideration.

Infringement and Rights of Copyright Holders

Section 14 of the Act grants the copyright owner exclusive rights, including the right to reproduce and publish the work. Unauthorized exercise of these rights constitutes infringement under Section 51. An exclusive licensee of the copyright also has the right to sue for infringement, as affirmed in Rupendra Kashyap (1996), where the plaintiff was an exclusive licensee of CBSE.

The "Public Interest" Argument

A defense often raised against copyright claims in educational materials is that of "public interest." However, the Delhi High Court in Rupendra Kashyap (1996) explicitly rejected this argument, stating, "the law as to copyright in India is governed by a statute which does not provide for defence in the name of public interest. An infringement of copyright cannot be permitted merely because it is claimed to be in public interest to infringe a copyright." The court acknowledged that knowledge of past questions is useful for students but noted that this information was available through the plaintiff's authorized publications.

Fair Dealing Provisions (Section 52)

Section 52 of the Act enumerates acts that do not constitute copyright infringement. Section 52(1)(a)(i) permits fair dealing with a literary work for the purposes of private or personal use, including research. While defendants in Rupendra Kashyap (1996) attempted to invoke fair dealing, the commercial publication of entire sets of past question papers, often with solutions, is unlikely to qualify as fair dealing for private study. The case of The Chancellor, Masters & Scholars Of University Of Oxford & Ors. v. Rameshwari Photocopy Services & Ors. (2016 SCC OnLine Del 6229), though concerning course packs, discussed the scope of educational exceptions under Section 52, emphasizing that these exceptions must be interpreted expansively but within the statutory confines.

Analysis of Key Judicial Precedents

The jurisprudence on copyright in question papers has evolved through several landmark cases.

Early Interpretations: Agarwala and Jagdish Prasad Gupta

These foundational cases from the Allahabad and Patna High Courts respectively, Agarwala Publishing House (1966) and Jagdish Prasad Gupta (1965), firmly established that question papers are "original literary works" capable of copyright protection. Crucially, they held that, in the absence of a contract of service or a valid assignment, the copyright vests with the individual paper-setters (the authors) and not automatically with the examining Board. These judgments underscored that a Board cannot simply declare itself the owner of copyright through its internal regulations if such ownership is not supported by the provisions of the Copyright Act.

The Role of the Examining Body: The Rupendra Kashyap Cases

The Rupendra Kashyap litigation in the Delhi High Court provided further nuances. The 1993 order (Mahinder Narain, J.) emphasized the natural person authorship and the need for CBSE to prove a contractual basis (like assignment or specific terms in a contract of service) to claim ownership. The 1996 judgment (Lahoti, J.) found CBSE to be the first owner of copyright, relying on Section 17(dd) (now Section 17(d)) of the Act, applicable to works made under the direction or control of a public undertaking. This recognized an alternative statutory basis for an examining body like CBSE to be the first owner, distinct from direct employment or assignment, provided it qualifies as a "public undertaking" and the work is made under its direction or control. Both judgments confirmed the right of an exclusive licensee to sue for infringement.

The Standard of Originality: Eastern Book Company

While not directly about question papers, the Supreme Court's decision in Eastern Book Company (2007) is significant for its articulation of the "originality" standard. By requiring a "modicum of creativity" and focusing on the skill and judgment in selection, coordination, or arrangement, the Court moved beyond the mere "sweat of the brow" doctrine. This standard is applicable to question papers, especially when they are compilations, ensuring that copyright protection is granted for genuine intellectual input in their creation, as also noted in Syndicate Of The Press (2011) and M/S Ravinder Singh & Sons v. M/S Evergreen Publications (India) Ltd. & Anr. (Delhi High Court, 2018).

Institutional Practices: The ICAI Case

The Supreme Court's observations in ICAI (2011), although primarily concerning RTI disclosure, shed light on institutional practices. The Court noted that question papers and model answers are literary works subject to copyright and that ICAI's practice was to require non-employee paper-setters to assign their copyright to ICAI. This highlights assignment under Section 18 as a key mechanism for examining bodies to secure copyright in works created by external experts.

Conclusion

The legal position in India firmly establishes that examination question papers are "original literary works" and thus eligible for copyright protection under the Copyright Act, 1957. The primary owner of this copyright is generally the author, i.e., the individual paper-setter(s) who expended skill, labor, and judgment in creating the paper.

Examining bodies can become owners of this copyright through several avenues: (i) if the paper-setter is an employee and creates the work in the course of employment (Section 17(c)); (ii) if the examining body is a public undertaking and the work is made or first published under its direction or control (Section 17(d)); or (iii) through a valid written assignment of copyright from the author to the examining body (Section 18). Mere administrative regulations by an examining body, without a basis in these statutory provisions, are insufficient to confer copyright ownership upon it.

The jurisprudence underscores the importance of clear contractual agreements between examining bodies and paper-setters to define copyright ownership explicitly. While copyright protects the expression in question papers, the "public interest" in access to educational material is generally not a defense to infringement, though statutory exceptions like fair dealing for private study exist with specific limitations. The consistent judicial approach has been to balance the rights of creators and copyright owners with the broader objectives of the educational system, within the framework of the Copyright Act, 1957.