Is photocopying reference questions from tutoring centers for student practice a copyright infringement issue?

Is photocopying reference questions from tutoring centers for student practice a copyright infringement issue?

During the competitive stages of junior and senior high school, teachers often hold various unannounced exams to assess student learning and improve their answering skills. However, creating exam questions can be a heavy burden for teachers, as the quantity of exams required by students is nearly unmanageable for a single teacher. In this situation, can teachers utilize school resources to photocopy simulated or reference questions printed by tutoring centers and distribute them to students for practice? These questions are designed based on textbook content; are they not protected by copyright law?

Regarding whether exam questions are protected under copyright law, Article 9, Paragraph 1, Item 5 of the Copyright Act states that 'various exam questions and their backup questions held in accordance with regulations' are not eligible for copyright protection. However, the 'questions' excluded from protection refer to 'exams conducted in accordance with regulations,' including national exams, monthly exams, section exams, final exams, and other assessments to evaluate student learning. This does not include simulated or reference questions created or published by tutoring centers. Therefore, as long as the simulated or reference questions from tutoring centers meet the requirements for originality (refer to Part 1, Question 2), they are still considered works protected by copyright law. While individual exam questions may lack creativity and may not be protected by copyright, a complete exam paper may at least have protection as an edited work and should be protected under copyright law. Teachers should first recognize that various simulated questions are works protected by copyright law.

Since the simulated or reference questions provided by tutoring centers are mostly protected by copyright law, if teachers do not obtain authorization from the tutoring center, copyright infringement issues may arise unless the use falls within the scope of fair use. The relevant fair use provisions for teachers providing test questions to students include two items: Article 46 of the Copyright Act stipulates that 'I. Schools established according to law and the teaching staff can reproduce published works for teaching purposes within a reasonable scope. II. The exception in Article 44 shall apply to the preceding circumstance.' Article 54 of the Copyright Act states that 'central or local government agencies, schools or educational institutions established by law may reproduce published works for use as exam questions. However, published works used as exam questions are not applicable.'

Article 46 of the Copyright Act is meant for 'teaching needs,' and assessment is considered part of the teaching activities. However, according to the second paragraph of Article 46, applying the exception in Article 44 means that if the type, purpose, number, or method of reproduction harms the interests of the copyright holder, fair use cannot be claimed. The various simulated or reference questions provided by tutoring centers are tools for competition between tutoring centers and other businesses, and if teachers obtain these questions and provide them to students for practice, it may reduce the willingness of students to attend tutoring centers, which can be deemed harmful to the copyright holder's interests, and therefore cannot be claimed as fair use. Regarding Article 54 of the Copyright Act, it clearly states that if the work to be reproduced is 'an exam question,' then reproducing others' exam questions for use as test questions is not allowed. Clearly, in this situation, a claim for fair use cannot be made.

In summary, if teachers have not obtained consent from the copyright holders, they cannot directly reproduce and provide students with various simulated or reference questions sold by tutoring centers or on the market for practice, even if they use school resources to print them and do not charge students separately. If teachers genuinely require such resources, it is recommended that they ask students to purchase the relevant simulated questions themselves for practice or that the school assist teachers who teach the same subject to jointly draft and accumulate a question database for student practice, thus avoiding potential copyright infringement issues.

• This article is excerpted from the Intellectual Property Office website of the Ministry of Economic Affairs
• Authors: Lai Wenzhi, Wang Wenjun