School Midterm and Final Exam Questions: Are They Protected by Copyright?

School Midterm and Final Exam Questions: Are They Protected by Copyright?

Whether in universities or lower-level high schools, the numerous exams each semester keep both teachers and students very busy. Teachers, even if they have taught the same course for years, still need to design different questions to assess students' learning. Many teachers wonder if they can directly refer to exam questions from other schools to make preparing exams easier.

According to Article 9, Paragraph 1, Clause 5 of the Copyright Act, all types of exam questions and their backup questions for exams conducted according to laws and regulations cannot be subject to copyright. As for what constitutes 'exams conducted according to laws and regulations'? In the past, the Copyright Act only stipulated 'all types of exam questions,' and its scope was unclear. To avoid disputes, some argued that since Article 9 of the Copyright Act excludes certain works from the scope of copyright protection, it should be interpreted narrowly to cover 'exams conducted by government bodies, public or legally recognized private schools,' thereby minimizing the scope of restriction in line with the legislative intent of the Copyright Act. However, another viewpoint holds that exam questions primarily test the academic status of examinees and do not significantly contribute to the cultural development of the country. Therefore, even with restrictions, there would not be a substantial impact on cultural development. The Copyright Act took a relatively broad approach during the revision, stipulating 'all types of exams conducted according to laws and regulations.'

Since the current regulation uses 'laws and regulations' rather than 'laws,' in addition to state exams such as special exams, higher exams, and general exams held by the Examination Yuan, entrance exams, midterms, and final exams held by schools are also based on the administrative orders of the Ministry of Education. Thus, these exams are similarly not protected by copyright.

For instance, in the case of university midterms and final exams, the Ministry of Education stated in a letter (Tai Gao (1) No. 0950008784 dated February 14, 2006) to the Intellectual Property Office that 'according to Article 28 of the University Act, student assessments are incorporated into university regulations, which are submitted to the Ministry of Education for record. Therefore, midterms and final exams conducted by universities still fall under the student assessment category stipulated by the University Act and its rules.' Since university regulations are formulated in accordance with Article 28 of the University Act, midterm and final exams conducted by universities are considered exams conducted according to laws and regulations and thus are not protected by copyright under Article 9, Paragraph 1, Clause 5 of the Copyright Act. University joint entrance exams and other related university entrance exams also fall within the scope of university regulations, and the questions and mock questions used in such exams are similarly not protected by copyright.

For high school and lower levels, the midterms and final exams held across all grades have their respective bases as follows: (1) Assessments for elementary and junior high students are conducted according to the 'Assessment Regulations for Elementary and Junior High Students' and the 'Junior High Student Assessment Regulations.' (2) High school midterms and final exams are conducted according to the 'High School Student Assessment Regulations.' (3) Midterms and final exams for vocational high schools are conducted according to the 'Vocational School Regulations.' (4) Exams for technical and vocational colleges are conducted according to relevant provisions of the Junior College Law.

Since the scope of the aforementioned laws and administrative orders is extensive, covering almost all kinds of exams in public and private schools, mock exams, review exams, and quizzes held by schools can be considered as exams conducted in accordance with relevant education laws in Taiwan. Therefore, the questions and their backup questions are not subject to copyright. However, if teachers prepare practice questions during class that are not part of regular or continuous assessments, but only serve as part of the teaching content, they are not exempt from copyright protection. While this interpretation is more lenient than in other countries, it makes exam preparation easier for teachers and students and serves a certain public interest. Unless the law is amended to narrow the exemption, school teachers and students can safely use questions from exams conducted according to laws and regulations. However, apart from objective questions like multiple choice and true/false, other exam question answers that meet the requirements for copyright protection are still protected under the Copyright Act.

• Content excerpted from the Intellectual Property Office website, Ministry of Economic Affairs
• Authors: Lai Wen-chih, Wang Wen-chun