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OK to publish test question with my own answers?

Posted: Fri Jan 04, 2013 9:10 am
by chocolatebiscuit
I'd like to know if it's ok to publish online my own answers to test questions which are under copyright.

I'm talking specifically about questions which have subjective, creative answers, for example writing an essay based on a published rubric, a story based on a given opening, or a musical composition.

Since the answer part is my own work, I can't see that it would be a problem, but would I be allowed to include the question part? Does it make a difference if I have published a scanned image of the question compared to writing it out again myself?

For example, a music exam board might publish a question which involves composing 3 parts to fit above a bass line written by Bach. If I typeset the bass line myself (I believe I can do this since it becomes my Edition of the work?) am I in breach of copyright for publishing the same question? Does it depend on whether I use the exam boards exact rubric of the question or not?

Same for writing essays or stories. If I use the same question idea but reword it, then publish my own answer, is that legal?

Many thanks.

Posted: Fri Jan 04, 2013 10:45 am
by AndyJ
Hi Biscuit,
As you have said, producing answers to questions posed by someone else does not infringe copyright, and your answers would be original works for the purposes of copyright, so you would own those rights.
Quoting the question is a problem because of course it will be the copyright work of someone else. This was established in a famous case from 1916 called University of London press Ltd v University Tutorial Ltd. Using an image of the question as opposed to copying it in type would still infringe. Arguably it would also infringe a second copyright, namely the typographical layout of a published edition contrary to section 8 as well as the actual question. As you are intending to publish your answers online you cannot use the exception which is available to schools and other places of instruction covered by Section 32 (3) because of section 32 (5), highlighted below:
32 Things done for purposes of instruction or examination.

(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by its being copied in the course of instruction or of preparation for instruction, provided the copying—
  • (a) is done by a person giving or receiving instruction,

    (b) is not done by means of a reprographic process, and

    (c) is accompanied by a sufficient acknowledgement,

    and provided that the instruction is for a non-commercial purpose.
(2) Copyright in a sound recording, film or broadcast is not infringed by its being copied by making a film or film sound-track in the course of instruction, or of preparation for instruction, in the making of films or film sound-tracks, provided the copying—
  • (a) is done by a person giving or receiving instruction, and

    (b) is accompanied by a sufficient acknowledgement,

    and provided that the instruction is for a non-commercial purpose.
(2A) Copyright in a literary, dramatic, musical or artistic work which has been made available to the public is not infringed by its being copied in the course of instruction or of preparation for instruction, provided the copying—
  • (a) is fair dealing with the work,

    (b) is done by a person giving or receiving instruction,

    (c) is not done by means of a reprographic process, and

    (d) is accompanied by a sufficient acknowledgement.
(2B)The provisions of section 30(1A) (works made available to the public) apply for the purposes of subsection (2A) as they apply for the purposes of section 30(1).

(3) Copyright is not infringed by anything done for the purposes of an examination by way of setting the questions, communicating the questions to the candidates or answering the questions, provided that the questions are accompanied by a sufficient acknowledgement

(3A) No acknowledgement is required in connection with copying as mentioned in subsection (1), (2) or (2A), or in connection with anything done for the purposes mentioned in subsection (3), where this would be impossible for reasons of practicality or otherwise.

(4) Subsection (3) does not extend to the making of a reprographic copy of a musical work for use by an examination candidate in performing the work.

(5) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with, it shall be treated as an infringing copy for the purpose of that dealing, and if that dealing infringes copyright for all subsequent purposes.

For this purpose “dealt with” means—
  • (a) sold or let for hire, offered or exposed for sale or hire; or

    (b) communicated to the public, unless that communication, by virtue of subsection (3), is not an infringement of copyright.
The only way I think you could do this is to obtain permission from the examination board concerned to quote from their paper.
Incidentally, it really doesn't matter whether the answer is in a subjective form such as an essay or a factual one such as the answer to a quadratic equation. Neither would impinge on the copyright of the question, although arguably the answer to the quadratic equation would be a 'fact' so not eligible for copyright on its own.
With the Beethoven question, it would be OK for you to reproduce the composer's bass line since that is out of copyright. As for paraphrasing the complete question I think you may run into problems unless the question is so generic that you could reasonably claim to have thought it up yourself. Take a look at the case I linked to above for a discussion of what constitutes a 'stock of common knowledge'.
If your intention is to produce model answers to generic questions, rather than specifically, say, last year's Oxford and Cambridge Exam Board's A level music paper, then drafting your own questions would seem to be the best solution. However if you need to tailor your answers to a specific paper then I think getting permission is the only solution.

Posted: Fri Jan 04, 2013 11:43 am
by chocolatebiscuit
Thank you for your prompt and comprehensive answer!

Writing my own questions has been the route I've taken up till now, but it would be nice to be able offer answers to real past papers, but I do see that it could be problematic.

I find it difficult to draw the distinction between generic and specific.

When it comes to essays, if an exam paper asks something like "Discuss the pros and cons of zoos", then I would take that to be a generic question. If it said something more along the lines of "Some people have outspoken views about whether zoos have a place in modern society. Write an essay giving your own view" does that become a specific question?

For the musical composition questions, the exam board takes an out-of-copyright piece, makes their own edition of a few bars and basically says "finish it in your own way". If I take the same out-of-copyright piece, make my own edition of the same few bars and then provide my own answer to the question then am in breach because I picked the same few bars? Or for asking the same question? (Isn't that a generic question?) What if I picked different bars from the same piece, or a few more/less?

Posted: Fri Jan 04, 2013 1:20 pm
by AndyJ
Hi Biscuit,
It's hard to be definitive about the borderline between what is a generic (perhaps commonplace might be a better word) question and one which because of its careful choice of words may well attract copyright due to its originality. Originality here doesn't mean novelty, rather it means that some work that originates from a human mind without having been copied from somewhere else. From this it is perfectly possible for two people to write the same question based on a particular syllabus quite independently, and this would not be infringement. A problem arises where the claimant can show that the alleged infringer was aware of the claimant's work, and so is likely to have been influenced, even subconsciously, by it. This is the essence of the case in which George Harrison's 'My Sweet Lord' was found to infringe the Chiffons' song 'He's so fine'. So if you can craft a question that elicits the answer you wish to provide, without using the actual exam board words, then that problem is much reduced.
With regard to the musical questions, there is no infringement if you quote the same few bars from a long-dead composer's work as was in the original question, because both you and the exam board are quoting something which is in the public domain. If the question you pose is short and to the point, eg "Complete this piece in your own style", which although it is similar to the exam board's "finish this piece of music in your own way", this is unlikely to be found to infringe because there are only a few ways of saying the same thing, and you and the examiner have probably used the same amount of creative effort to compose your respective questions. However if this is but one of a dozen or so paraphrased questions, then a court might well find that this amounted to copying since the degree of coincidence was too great to be explained by chance.

Posted: Fri Jan 04, 2013 2:16 pm
by chocolatebiscuit
Got it - thanks!


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