Jane Tsai and Jiselle Ong
To accommodate the rapid development of digital networks and the needs for education policies and epidemic control, the Legislative Yuan adopted the amendments to four articles concerning the “fair use for distance education,” “fair use of electronic files of textbooks,” and the “digital reproduction and fair use of the National Central Library’s collections” of the Copyright Act by a third reading on May 27 this year (2022) after the draft Amendments were delivered by the Executive Yuan for deliberations in the middle of last year (2021). The language of the amendments so adopted is slightly adjusted as compared with the draft. The amendments as adopted are hereby described as follows:
1. Schools may freely and fairly use the works of others for distance education to registered and enrolled students (Article 46)
The existing law only allows teachers to “reproduce” the works of others. For example, they may print and distribute materials within a reasonable scope to students when teaching in classrooms. However, due to the rising demands for distance education in recent years, these Amendments additionally stipulate that teachers may, to the extent necessary for teaching courses at school, “publicly broadcast” or “publicly transmit” the works of others so that they may provide references and supplemental materials to their students via the Internet. In addition, to avoid excessive infringement of the rights and interests of copyright holders, teachers can provide such materials only when reasonable technical measures (such as accounts and passwords) have been taken to prevent students who have not taken courses from receiving relevant materials. Distance education, which is an extension of physical classroom education, also has the characteristic of public interest; thus, in principle, school teachers are allowed to use the works without paying royalty.
2. The works of others may be used on a fair use basis for non-profit distance education for general public after the compensation for the exploitation is paid (Article 46-1).
For the type of teaching targeting the “general public,” the current law does not provide for fair use concerning online education. Therefore, the Amendments contain additional provision that allow schools and educational institutions to “publicly broadcast” or “publicly transmit” the works of others when providing “non-profit” distance education for general public. Given that the target audience for the teaching activities is the general public, a large number of people and a wide scope are involved. Unlike the registered students mentioned above, the exploitation is limited to the “necessary scope for educational purposes” and reasonable compensation for the exploitation should be paid to the rights holders to take care of the rights and interests of the copyright owners. As for profit-seeking distance education such as the online education provided by institutions like cram schools, they may not exploit the works of others without a license since they do not have the characteristic of public interest.
3. Textbook publishers may transmit electronic files for exploitation by teachers and students if the exploitation compensation is paid (Article 47).
The current law stipulates that textbook publishers may exploit the works of others to complete textbook reviews or compilations, but can only provide paper copies for exploitation by teachers and students for the textbooks, which cannot meet the needs of students using electronic schoolbags in the digital age. Therefore, these Amendments additionally make fair use provisions that allow textbook publishers to transmit textbooks via the Internet for teachers and students’ reasonable use. In addition, to also take care of the rights and interests of copyright owners, it is required to pay exploitation compensation by the publishers to the copyright owners for such exploitation.
4. The National Central Library may digitally reproduce its collections, and all kinds of libraries may provide online access within the libraries to their own collections (Article 48)
In response to technological advances and to achieve the goal of promoting cultural development, these Amendments contain an additional provision that allows the National Central Library to digitalize its collection to avoid any loss and destruction of them, so that the National Central Library can comprehensively preserve contemporary works. In addition, a fair use provision is also added to stipulate that the National Central Library or general libraries may, under certain conditions, provide readers with online access to their collections within the libraries in lieu of lending or browsing paper books form the original collection. This will not only facilitate the digitalization of library services, but is also conducive to the preservation of paper collections of libraries.
 On April 8, 2021, the Executive Yuan adopted the draft Amendments, which were then delivered to the Legislative Yuan for deliberation on April 12. For details of the draft, please refer to the Firm’s article titled Introduction of the Draft Amendments to the Copyright Act (Taiwan).