In a recent decision, the Delhi High Court (HC) has vacated an injunction against the publisher of guide books to the ICSE and ISC examination questions papers and directed the Trial Court to adjudicate the injunction application afresh.
Parties and Claims
The plaintiff is a leading publisher of school-level academic books in India. The Council for the Indian School Certificate Examinations (ICSE Board/ the Board) [Defendant No. 3] conducts examinations of ICSE and ISC Board. The plaintiff had obtained an exclusive license from the Board for the publication of previous years’ examination question papers (question papers/questions) in India for 2015 to 2017.
The plaintiff alleged that the defendants were engaged in unauthorized publication and sale of model answers to these question papers. The defendants claimed that their model answers are original works and therefore protected by copyright and challenged the copyrightability of question papers.
Trial Court and High Court Orders
The Trial Court observed that the question papers were copyrightable and granted an interim injunction. The defendants adopted the defense of fair dealing; but the Trial Court summarily rejected this argument on the grounds that the defendants’ stand was to challenge the copyrightability of plaintiff’s question papers. I think that this is an incorrect; because challenge to copyrightability attacks the edifice of copyright protection and a defense of fair use safeguards specific forms of use which would otherwise amount to copyright infringement. If successful at proving either, the defendant will be exempted from liability.
On appeal, the Delhi HC noted that the Trial Court’s order was not reasoned well enough and that the defendants’ arguments need to be examined more carefully. The Court observed that that the question of law on fair dealing as developed by the same Court in OUP vs Narendra Publishing (Narendra Publishing) is left open as the decision is sub judice before the SC. More importantly, the Court has also directed the defendants to maintain the accounts in the interim period.
While this 5-page order merely sends the issue of injunction back to the trial court, it offers an opportunity to examine a few questions:
Whether an ‘examination question paper’ is copyrightable?
In Narendra Publishing, the plaintiff had argued that to prove that questions are copyrightable literary works. However, Justice Bhat reiterated the standard of originality in EBC v. DB Modak; wherein the SC struck a balance between the tests of sweat of the brow and the modicum of creativity and held that a certain minimal intellectual effort and creativity are required to afford copyright protection to a work. Mihir Naniwadekar has covered this issue here.
It is undisputed that the ICSE Board hires teachers and other experts to set their papers. Now, I believe that there is definitely a good amount of thought and intellectual labor applied by paper setters to come up with good quality questions every year. For example, in the 2016 ISCE Board English -1 Paper has the following questions:
These questions may seem obvious or easy to come up with in hindsight. But that shouldn’t strip them of their original and creative nature. Such questions, albeit framed for examination use, meet the standard of originality under Indian law.
Doctrine of Merger
Some ideas are either inextricably linked to its expression or have limited forms of expression. The doctrine of merger doctrine provides that the expressions of such ideas cannot be copyrighted. Shamnad Sir has explained the doctrine of merger here. In Narendra Publishing, Justice Bhat held that “[m]athematical questions are expression of laws of nature. The discovery of such laws cannot confer monopoly to those who describe it. The reason is that language is a limited medium, which enables description of such laws of nature – in only a few ways.” I find this conclusion a bit problematic. Let me explain with the use of the 2016 ISCE Board Mathematics Paper:
Here, the doctrine of merger should apply to the use of the ‘remainder theorem’ because it is a specific idea in mathematics which cannot be monopolized. However, Question 1(a) in the above paper demands the application of the remainder theorem to a specific question formulated by the ICSE Board. Even if Question 1(a) is protected by copyright, there are numerous other questions which can be used to test a student’s understanding of the remainder theorem. Therefore the doctrine of merger should not be applicable to examination questions.
Whether the fair dealing defense of ‘review’ is applicable
Section 52 of the Act provides an exhaustive list of defenses to copyright infringement. The following provisions are pertinent in this case:
- Certain acts not to infringement of:- (1) The following acts shall not constitute an infringement of copyright, namely : —
(a) a fair dealing with a literary, dramatic, musical or artistic work for the purposes of —
[…] ( ii ) criticism or review, whether of that work or of any other work;
The defense of review has been previously discussed in Narendra Publishing in a similar context. Mathews has covered this judgment here. In this case, Justice Bhat of the Delhi HC held that the defendant’s reproduction of plaintiff’s mathematical questions/exercises for the purpose of providing stepwise answers was fair dealing in the form of review. Justice Bhat discussed the American four-factor test of fairness (enumerated under Section 107 of the US Copyright Act) in Harper v. Nation Enterprises :
(1) the purpose and character of the use;
(2) the nature of the copyrighted work;
(3) the substantiality of the portion used in relation to the copyrighted work as a whole;
(4) the effect on the potential market for or value of the copyrighted work and proceeded to test the facts on each of these grounds.
Justice Bhat also noted that the US Supreme Court recorded a paradigm shift in Campbell v. Acuff Rose when it held that the defendant’s parody was a fair criticism of the plaintiff’s song despite the commercial nature of the use.
In the present case, the nature of plaintiffs work was merely informative, i.e. to communicate the content of the questions. Per contra, the main nature of defendants’ work was a review/commentary on those questions in the form of original model answers them. To that extent, the defendants’ use of the plaintiff’s work was transformative. It cannot be denied that the defendants’ work may serve as a substitute to that of the plaintiff’s. However, the fair dealing defense should be applicable here as most other factors tilt in the favor of defendants.
Besides, it would be against the interest of students attempting the ISCE and ISC Board examinations to be deprived of the right to choose to peruse any set of model answers to such previous years’ questions. As for the quality of the defendants’ model answers; I believe that this should be kept open for the concerned students or their parents and teachers to decide and not the Court.
The Trial Court’s fresh adjudication of the injunction application will shed more light on judicial treatment of examination question papers. However, for reasons mentioned above, I sincerely hope that the Court rejects the injunction. That said, the plaintiff should be protected against infringement in any other case where the examination questions in any case of unfair dealing, e.g. if they are reproduced and sold by any other person merely as question paper sets.
 University London Press v. University Tutorial Press  2 Ch. 601
 471 US 539 (1985)
 510 U.S. 569 (1994)