Angela Wu
The Intellectual Property Office issued the Zhi-Zhu-10500043670 Circular of June 23, 2016 (hereinafter, the “Circular”) to communicate that because digital reproductions are very easy to circulate even if they are protected by technical protective means which restrict duplication, improper use such as reproduction or distribution is still hard to avoid since the technical protection means are easy to circumvent. Therefore, Article 48, Subparagraph 1 of the Copyright Law provides that a library shall still be subject to the restriction that only hard copies can be provided to its readers.
Article 48, Subparagraph 1 of the Copyright Law provides: “Libraries, museums, history museums, science museums, art museums, and other cultural institutions open to the public may reproduce works in their collections in any of the following circumstances: (1) Where a patron requests reproduction of a part of a work that has been publicly released, or a single article from a seminar paper or a single article from a periodical that has been publicly released, provided that the copy is for personal research purposes and is limited to one copy per person.” According to the Circular, since the circumstance that “an academic institution may provide digital reproductions obtained via interlibrary loan services through the Ariel system or by email to accommodate individual academic research and teaching needs” involves use via “public transmission,” which is the proprietary right of copyright holders, the permission or license of the copyright holders is still required.
According to the Circular, because digital reproductions are very easy to circulate even with technical protection means which restrict duplication, their improper use such as duplication or distribution can hardly be prevented since the technical protective means are easy to circumvent. Therefore, Article 48, Subparagraph 1 of the Copyright Law provides that a library shall still be subject to the restriction that only hard copies can be provided to its readers in order to constitute fair use. As to whether there is room for asserting fair use under Article 65, Paragraph 2, this still depends on the court’s determination on fair use based on the “objectives and nature (including commercial or non-profit educational purposes) of use, nature of works, quantities used and their percentage to the entire works and the impact of the results of the use on the potential market and present value of the works” according to the facts of individual cases.
The Circular finally also points out that if readers need to use electronic files, libraries are recommended to stipulate in their agreement with electronic databases the scope of license and readers eligible to interlibrary loan services of the libraries when negotiating a copyright license for electronic databases.