In Boyapati v Rockefeller Management Corporation  FCA 995, Kenny J considered, amongst other causes of action, a claim for infringement of copyright in a series of tests designed to prepare candidates for the Undergraduate Medicine & Health Sciences Admission Test (“UMAT”).
There was little doubt that the respondent, also engaged in the business of preparing students for the UMAT, had reproduced the applicants’ tests and most consideration was directed to whether the tests were sufficiently original for copyright to subsist. Of the 800 questions forming the various tests, there was evidence to the effect that while half where written from scratch, the other half where developed from existing questions compiled from various sources. After reviewing a number of authorities on originality in compilations, her Honour concluded that:
Whilst the evidence established that she [the second applicant] derived the balance of the questions and answers from third party sources, she used these sources in different ways, selecting, adapting and modifying them to varying degrees to suit her purpose of compiling sets of practice exams that simulated the UMAT. Even where she made minimal modification to a pre-existing question, she exercised skill and judgment in selecting the question and including it in either section 1 or 2, depending on whether it concerned logical reasoning or interaction skills. There was also a degree of skill and judgment involved in organising the sequence and, to a lesser extent, the number of questions in sections 1 and 2 so as to simulate the UMAT. The practice exams that she created were therefore a product of her skill, judgment and labour, combined with that of Ray and Edward Boyapati to the extent that they contributed to the process. The skill, judgment and labour involved were sufficiently substantial to attract copyright.
In addition to finding that the respondent had infringed copyright, her Honour also held that the applicants should succeed in their claim for conversion under s 116 of the Copyright Act. The Court made orders that the parties file further submissions in relation to the appropriate relief, both for the conversion and copyright infringement, including whether additional damages should be awarded.