The long arms of copyright law hit home again in Singapore, after a spate of high profile cases involving online maps, music downloading, and anime viewing in recent memory.

This time, there were two cases, both of which dealt with matters from the academic arena.

The 10-year series case

The first was a case which involved the long time annual publication by local book agencies, of a 10-year compilation of ‘A’ and ‘O’ level examination question papers, incorporating such question papers of the most recent year as are available. However, for reasons arising from issues relating to breach of copyright law, the publishers were forced to cease the publication of this compilation, popularly known as the “10-year series”, in the early part of this year, (i.e. 2009).

The 10-year series has been popularly used by our local students as an invaluable and indispensable tool and guide in their preparation for the respective examinations, (or their predecessor examinations), over the last 40 years. As such, the subsequent prohibition of its publication became a matter of grave concern to all affected, directly, such as, students, and indirectly, such as, families of students, and also, the relevant governmental authorities concerned.

Hence, not long thereafter, an agreement was reached between the holder of the copyright in the ‘A’ and ‘O’ level examination question papers, namely, the University of Cambridge International Examinations, on one hand, and the relevant overseeing governmental body in Singapore, namely, Singapore Examinations and Assessment Board. As a result of this agreement, the copyright issues arising from the publication of the 10-year series were resolved amicably, (without recourse to the court), and the publishers were allowed to resume its publication.

The Stansfield case

The second case is a dispute between, amongst others, two private schools, namely, Stansfield College (“Stansfield”), and Singapore Accounting Academy, (“SAA”), over the use of various teaching materials, (“the Stansfield case”). However, unlike the first, which was amicably settled, the Stansfield case, (as at the time of writing this article), is heading for a trial in the High Court of Singapore. Its trial has been scheduled to take place some time in October this year.

The Stansfield case arises from an allegation of unlawful copying of its teaching materials by its 3 former lecturers, after they had left Stansfied to work for SAA. SAA is the training arm of the Institute of Certified Public Accountants of Singapore, the national body of accountants in Singapore, (“the Institute”).

Pending the the trial, the High Court has granted Stansfield an interim injunction, whereby the Institute has been ordered to stop using the teaching materials.

The teaching materials in question in the Stansfield case involve four sets of lecture notes that are linked to the University of London degree programme (“the UOL programme”). The UOL programme is offered by both the schools, (i.e. Stansfield and SAA), in areas such as business, finance and accounting. And, although it is taught by lecturers locally, the UOL programme is based on course syllabi or study guides as provided by the University of London.

Based on evidence obtained by private investigators hired by Stansfield, it is alleged that the SAA’s lecture notes concerned purportedly contain many similarities, and even the same mistakes, as are found in the relevant teaching materials which Stansfield had caused to be prepared over time by its lecturers.

In refuting Stansfield’s allegations, its 3 former lecturers concerned deny that Stanfield had ever gained any copyright in the subject lecture notes. They, who had been with Stansfield for between 4 and 13 years, maintain that ‘the lecture notes were ‘essentially compilations of materials and information obtained from various sources such as textbooks and reference materials’. As such, the lecture notes were not original works in which copyright existed.

Further, it is contended that the contents of the lecture notes in question were generally accessible to the public.

Against the above factual backdrop, one may be tempted to stand on the side of the alleged infringers, in the spirit of academic freedom and economic competition. However, on a close analysis of the laws, it is difficult to ignore Stansfield’s claims.

Copyright law in outline

Key requirements

The very act of scripting one’s knowledge down in black and white confers 3 of the key requirements for copyright and originality to exist, namely, that of fixation (the state of the material being recorded in manuscript or typewritten form); exercise of skill, labour and judgement; and finally, the relatively low threshold of original works.

In the case of University of London Press v University Tutorial Press [1916] 2 Ch 601, it was held that “the word ‘original’ does not mean that the work must be an expression of original or inventive thought…the originality that is required is related to the expression of thought”. This equates with the principle that the work must not of course have been copied, and must be the own work of the person claiming the copyright.

Thus, as long as the work is not copied, even if one produces something which is similar to someone else’s work, the former could still own the copyright in his own work.

Ownership of copyright

Where there is copyright, who then owns it? Is it the lecturer who is under the employment of an institute, or is it the institute as an entity cum employer? If it is the latter, does that not mean that a lecturer who moves to another institute is precluded from using his materials because the materials which he had developed belong to his previous employer, and thus there will be an infringement of copyright if he uses his erstwhile set in his new employment?

The practical conundrum

This, therefore, appears to pose a practical conundrum, for example, in the not uncommon case of academic professors who switch employment from one university to another, where they teach much the same courses and thus use much the same teaching material. In such event, they would, in all likelihood, be using, at their new place of employment, teaching materials, the copyright of which is owned by their ex-employer, even though the same were developed by them. Even if the academic takes existing materials and further improves on them, he can at the very most be said to own a derivative copyright in them.

The above situation can be further complicated in the case of visiting or adjunct professors, who might not be under the payroll of the university in connection with which the teaching materials had been prepared by the academics concerned.

Legal clarity

The position in law in Singapore is fairly clear and well structured. Generally, the person who created the work (i.e. the author), owns the copyright in the work. However, there are exceptions to this general rule.

One such exception is found in an employer-employee situation. In this context, Section 30(6) of the Copyright Act provides that where the work is created by an employee pursuant to the terms of his employment, the employer owns the copyright in the work.

Having said so, in some cases, the employee may come to inherit the copyright if he is working for a newspaper/magazine/periodical. In cases where an employee of a newspaper, magazine or periodical creates a literary, dramatic or artistic work pursuant to the terms of his employment and for the purpose of publication in a newspaper, magazine or periodical, the proprietor of the newspaper, magazine or periodical will own the copyright therein, in respect of publication in, or reproduction for the purpose of publication in, any newspaper, magazine or periodical.

However, the employee owns the remaining rights that make up the bundle of exclusive rights which come under the umbrella of the copyright as originally formed. Some of these rights could be to perform the work in public, communicate the work to the public or to make an adaptation of the work.

Thus, according to first principles, if an institute is seen as an employer, then it should own the copyright in the teaching materials prepared by the lecturer since he prepared them in the course of his work.

In the case of a visiting guest professor, the law is equally clear as well. It would, in most cases, follow the usual practice adopted in all types of commissioned work. In such cases, the ownership of copyright usually belongs to the commissioned party, unless the commissioning and commissioned parties agree otherwise.

Conclusion

There are a plethora of case laws which confer copyright to such works which have been created from knowledge evinced in materials available in the public domain, and compiled from several sources.

For instance, in Telstra Corporation Limited v Desktop Marketing Systems Pty Ltd [2001] FCA 612, the Federal Court of Australia ruled that Telstra, the Australian owner/publisher of the innocuous White Pages and Yellow Pages telephone directories, had copyright in the content of the directories. Consequently, the use of the data by the Desktop Marketing constituted an infringement of the copyright, and therefore, the offending product was removed from sale.

It is, therefore, to be noted that copyright was conferred to the compilation by Telstra, because in calling it into existence, it attracted much skill, labour and judgement from the creators.

Hence, regardless of the fact that extraneous sources had been tapped in the creation of lecture notes, by lecturers of institutes of education, it would be the case that such created teaching materials would bear copyright, and the copyright would belong to the employer of the creator if it was so created pursuant to the terms of his employment.