Copyright of user-generated content

Question

My partner and I created a pre-employment testing website. Users come to our site, pick and choose questions they like from our library and then invite their candidates to take the test.

We (owners of the website) own the copyright to questions in our library. We would now like to limit/reduce/slow down sharing of the answers to our questions. To do that, we have stated in site's terms of service that we own the copyright to the solutions created by candidates.

When a candidate leaks their solutions online (mostly unintentionally), we would like to use these grounds to get the answer removed from the Web (DMCA take down notices) where it's possible to do that.

Is there any legal reason why we are not allowed to do this?

EDIT: Our knowledge of legal systems is very limited and some of the first attempts we tried so far resulted with statements that are putting in question our right to claim ownership over user-generated content so we wanted to quickly check if we are doing something obviously wrong.

EDIT #2: I would appreciate a recommendation for an ideally online law service that could help us sort this out (Terms of service that candidates need to agree to before taking the test) so that it's legally defensible.

Answer 1

"we have stated in site's terms of service that we own the copyright to the solutions created by candidates".

Well, you can't assign copyright to yourself like that. The default legal position is that the author of a copyrightable work owns the initial copyright. The chief exception is a work for hire, and that's obviously not the case here.

However, I think your problem is fixable. Copyrights can be transferred, certainly in exchange for consideration. Consideration in general can be money, or anything else that's of value to the receiving party. In this case, you will promise the candidates to review their contributions and then submit them to potential employers. As the candidates would like to be employed, you definitely provide a service to them, so you can have legal wording drafted to achieve the intended effect. Getting the i's dotted and t's crossed would be a lawyers job, but it helps to know what to ask.

Answer 2

While it is certainly legal, the question of if the copyright is transferred is a complex one. Some questions that you should ask yourself:

• Do you have a contact with the candidate?
  • Some consideration must go both ways for a contract. If the candidate contacts you and you find them an employer, that may well count as consideration. If the employer sends the candidate to your web page as part of the selection process that may well not. Note this is seperate from if you have a contract with the company.
• Is the clause obvious to the candidate?
  • Unusual and onerous terms must be conspicuous to the parties to the contract. As this is somewhat unusual, if it is buried in 10 pages of legalese this would probably not count. If it was prominently displayed at the point where the candidate accepts the contract it probably does.
• Is the answer copyrightable?
  • Facts are not copyrightable. If the question is "what is 2+2" then "4" is not copyrightable. If the answer is an essay then it will be copyrightable.
• Is the answer on the internet covered by the copyright assignment?
  • If, after completing the test, the candidates do not have access to their answer (or do not refer to the copy they have), but recreate it independently from their knowledge and post it on the internet, it is possible that they would retain copyright on the new version.

Is is not a legal question, but I do wonder how much profit you could make per user to make a DCMA takedown campaign against your users, and the lawyer fees that it would require, profitable.