Newsletter
COPYRIGHT IN EXAM QUES-TIONS
In a recent legal interpretation, the Intellectual Property Office (IPO) stated that under the Copyright Act, examination questions are literary works, and as such they are subject to copyright and protection under the Act upon their completion. The Act also provides that central and local government agencies, and lawfully established schools and educational institutions at all levels, may reproduce published works for use in exam questions when conducting examinations of all kinds. But this does not apply if a published work is itself an exam question. The IPO pointed out that the above provision allowing published works to be reproduced for exam questions applies only to examinations conducted by central and local government agencies and by lawfully established educational institutions, and that if a published work is itself an exam question originally created for exam use, it cannot be reproduced under the above provision.
Thus if a teacher uses a question from a collec-tion of practice exam papers or a book compiled by a textbook publisher for students' use, it is not an exam conducted according to legislative re-quirements. The teacher has to obtain consent or a license from the copyright holder, or else such use may infringe copyright.
Article 9 of the Copyright Act also provides that exam questions prepared for examinations of all kinds conducted according to the law cannot be the subject of copyright, and hence do not enjoy protection under the Act. But other exam ques-tions do enjoy copyright protection. Thus a collection of practice test papers for students' use that is published by a private person does enjoy copyright protection. When all or part of a work is used for an examination question in accordance with Article 9 of the Copyright Act, regardless of whether it is reproduced under license, within the limits of fair use, or by in-fringement, the work itself remains the subject of copyright.
Exam questions used by schools at all levels for monthly exams, mid-term exams, or end-of-term exams are questions for exams held in accor-dance with legislative requirements, as provided for by Article 9, and they may be used by anyone. But a work previously published by a textbook publisher or other publishing company does not lose its own underlying copyright by virtue of having been used in such an exam as questions. In other words, if another person does not use a school exam question as an integral whole, but instead makes separate use of the content of a work reproduced in it, it is still necessary to ob-tain consent or a license from the copyright holder, otherwise such use is also likely to in-fringe copyright.