The Common Law Admission Test (CLAT), held on May 10th, 2015 saw 30,000 (mostly) young, enthusiastic teenagers vie for the 2000-odd seats available in India’s prestigious National Law Schools. This year, the test went online for the first time, and while many were apprehensive about the challenges that this would bring, nobody anticipated the scale of problems that the exam would eventually throw up. Some of the major issues were those of incorrect questions, incorrect answers and a delayed declaration of the ranks. To add to the list, recently, an Open Letter to the CLAT Committee published in LegallyIndia has revealed that a whopping 135 of the 150 questions in the exam were plagiarized. While SpicyIP has in the past reported several instances of high-profile plagiarism (famous ‘copycats’ include Martin Luther King Jr himself); in this post, I examine the copyright infringement aspect of the alleged plagiarism.[Long post]
The Alleged Plagiarism
The authors of the Open Letter have found that most of the questions in the CLAT 2015 paper were copied from Guidebooks that were designed to help those taking the Common Admission Test (CAT- the entrance test for the Indian Institutes of Management). Apart from this, around 27 questions were from gktoday.in, an online portal that provides current affairs updates. The authors of the letter even provided links to the google books images of the copied portions. They allege that not only have several questions been copied verbatim, the order of the answer-options as well as the errors in some of the questions has been copied as well! When confronted, one of the members of the CLAT Committee allegedly responded by saying that the expert committee constituted to set the paper found it difficult to come up with new questions as “everything now is in the public domain…there is hardly any question bank available” (sic).
The Copyrightability of MCQs
While the term ‘public domain’ was probably used loosely and not in the legal sense in the above statement, it is still worth considering whether Multiple Choice Questions really are in the public domain. The answer is not obvious because MCQs have to cross at least three barriers in order to be considered copyrightable: The Originality test, the Idea-Expression Dichotomy and the Merger Doctrine. The Idea-Expression Dichotomy in Copyright Law provides that Copyright shall only protect the expression of ideas, and not the ideas themselves. Similarly, facts in themselves are not copyrightable and are in the public domain. Flowing from this principle is the Merger Doctrine, according to which if the idea and expression are so closely tied together that there are few ways in which the idea can be expressed, the expression will not be copyrightable either.
Depending on the type of question, several MCQs cannot probably be copyrighted at all. Consider the question “What is 2+2?” and the options A) 1 B) 2 C) 3 and D) 4. Not only will it be a stretch to call this an original literary work, it will also probably be hit by the Merger Doctrine as there are only so many ways in which you can test a person what 2+2 is. However, for longer questions that require more creativity in wording, the American Courts of Appeal have consistently held that MCQs are copyrightable (for example, see Assocn of American Medical Colleges v. Mikaelian “the MCAT questions are undoubtedly the result of original work performed by scientists and scholars retained by AAMC and the Research Institute to create MCAT questions…the mere fact that MCAT questions refer to scientific fact does not place these questions in the public domain.”). Note that the Courts have held that the questions themselves are copyrightable, and not just question papers (see Educational Testing Service v. Katzman). The copyrightability of a question will therefore depend on the length and creative nature of the question. In the context of CLAT, the general knowledge questions, for example, are less likely to be copyrightable than the ones in the legal reasoning section, as they are more fact-based.
The De-Minimis Defense?
In India, the Supreme Court has held that question papers are copyrightable as they are the intellectual creation of their authors. However, one cannot conflate this argument with the one that the questions themselves are copyrightable, as the setting of papers involves a fair amount of “selection, judgment and experience” as well (which are factors that help the case of copyrightability). If question papers alone are copyrightable and not the individual questions, one can argue that borrowing just one or two questions from a question paper or a bank of papers will not constitute infringement as it is a small portion of the work (in other words, take up the De Minimis Defense).
However, even if one were to read the law so favourably for CLAT, it appears that they cannot escape. The Open Letter claims that in the General Knowledge section, 27 questions were from a single source-gktoday.com. Furthermore, all these 27 questions were lifted from a bank of 300 questions on the website, a hefty 10 percent. To put that in context, that would be the percentage equivalent of directly lifting 30 pages from a 300-page book. Here, I am assuming that the Expert Committee did not license the work from gktoday.in. If they have licensed it, it might put them on the right side of copyright law, but at the cost of a possible ethical compromise.
It is unlikely that Fair Dealing would come to the rescue of the CLAT Committee. While the US Four- Factor ‘Fair Use’ Test (that inquires into the nature, purpose, amount and effect on the market of the use) might save the CLAT’s actions as the questions were used by the state for a non-commercial purpose, the Indian Copyright Act requires the use to fall within one of the strictly defined exceptions under S.52. However, I am open to correction here. Interestingly, in a case where a publishing house was sued by the licensees of CBSE for publishing Board Exam question papers, the Court held that publishing the questions of a public examination was not fair dealing and “public interest” cannot be a defense for copyright infringement.
A Tad Bit Hypocritical
For all the ‘borrowing’ from the public domain that the CLAT Expert Committee appears to have done, CLAT aspirants should at least be able to expect in return that the CLAT papers themselves are in the public domain. Currently, these papers are behind a paywall on the CLAT website. They don’t just charge a nominal sum for the printing and shipping of papers- the papers can be downloaded upon the payment of Rs.250. As a public exam conducted by a state authority, there is definitely a public interest angle to such an expectation.
The CLAT today is an extremely competitive exam which poses several structural and economic barriers for law aspirants below a certain socio-economic threshold. Not only is the application fees exorbitantly high, the papers implicitly and explicitly test advanced-level English skills (and is therefore extremely difficult to crack for those from a vernacular-medium education), and accessing preparation materials is nearly impossible in rural areas without the internet and/or coaching centers. This has stark implications- For instance, the results of a Diversity Survey conducted by IDIA (a non-profit movement that aims to make legal education more inclusive) in the National Law Schools reveal that less than 1% of the first year student population in the ‘top 4’ Law Schools is from all the North-Eastern states put together. Open access to these papers will certainly help in evening out the playing field for the CLAT. By way of comparison, the UPSC, the authority that administers the aptitude test for the Civil Services, publicly makes available papers from 2011 onwards.
On the other end of the spectrum from the UPSC, the website for the CAT has a disclaimer that “disclosing, publishing, reproducing, transmitting, storing, or facilitating transmission and storage of the contents of the CAT or any information therein in whole or part thereof… may constitute a cognizable offence punishable with imprisonment for a term up to three years and fine up to Rs. two lakhs” . Will the CAT Committee have a cause of action against the CLAT Committee? Are they both instrumentalities of the state? Let us know in the comments. 🙂