On Copyright Of Public Examination Papers

Examination is an effective means of level evaluation,ability assessment,and talent selection.It not only concerns everyone’s vital interests such as enrollment,employment,promotion,and advancement,but also becomes a main way for the country to identify and select talents.Examination questions are key factors in the effective implementation of the examination function.Examination question designs are highly professionalized and require designers to afford creative intelligence activities.Examination questions are often of high originality,which conform to the constituent elements of the work,and thus should be protected by copyright.However,the copyright issue about examination questions is often ignored,which also leads to relevant copyright disputes,especially some influential cases arisen in the past ten years in China,for example,ETS v.New Oriental School infringement dispute over copyright and trademark exclusive rights,GMAC v.New Oriental School infringement dispute over copyright and trademark exclusive rights,Hu Haobo v.National Education Examinations Authority copyright infringement dispute,He Ping v.National Education Examinations Authority copyright infringement dispute,copyright infringement disputes between Hu Haobo over six Presses including China Machine Press for use of matriculation questions he designed,the National Medical Examination Center v.Shaanxi Fourth Military Medical University Press copyright infringement dispute,etc.The copyright issue on public examination questions,especially the national unified examination questions,has entered the public’s field of vision and attracted widespread attention.The copyright issues involved in the public examination questions mainly include the following three aspects: whether or not to grant copyright to public examination questions themselves,the copyright issue on use of others’ works in public examination questions,and the copyright issue on the subsequent use of public examination questions.These three issues are intrinsically and logically interrelated.Among them,the issue about whether public examination questions should be subject to copyright protection is the most controversial one.China’s current copyright law fails to impose specific provisions on the above issues,and moreover,they are in lack of systematic research achievements in the academic circle.For the sake of purposeful and feasible studies,this article focuses on the most publicly-recognized national unified examination questions,and systematically studies the above issues.Except Introduction and Conclusion,this article is composed of five chapters.Chapter Ⅰ mainly examines the copyrightability of public examination questions.Where any object pursues for copyright protection must be the object of copyright protection and conform to the constituent elements of the work.Examination questions usually convey certain information in a form of writing,graphics,etc.,which reflects the intentions and emphases of the examination questions designers.Therefore,examination questions belong to the intellectual expressions that can be reproduced in a certain tangible form in the literary,artistic and scientific domain.In the process of designing and compiling the examination papers,the examination questions designers make judgments and selections of the examination contents,the perspectives of the selected questions,the types of examination questions,the distribution of scores,and the like,and the judgments and selections often reflect certain personality characteristics of the examination questions designers,and contain their originality contributions.Not only can each of original examination questions constitute a work,but also the original set of examination paper can be compiled into a work.The public examination questions are more standardized and scientific than the general questions,and their originality will be more prominent.Therefore,public examination questions are copyrightable.The objects beyond the copyright protection in the China’s current copyright law do not include public examination questions,but pursuant to the current provisions of the China’s copyright law,public examination questions are objects protected by copyright.In China’s judicial practice,the copyright protection of public examination questions is also acknowledged.Consequently,the copyright protection of public examination questions is legality.Chapter Ⅱ analyzes in depth the legitimacy of the copyright protection of public examination questions.The value objective of the copyright law has dual natures.On the one hand,it protects the copyright to stimulate the author’s intellectual creation;on the other hand,it ensures the public’s reasonable access and use of the work to promote public benefits.The value objective of the copyright law is primarily achieved by encouraging the creation and dissemination of works.The copyright law encourages the creation and dissemination of works,which on the other hand relies on the fact that the copyright law confers copyright protection to authors.Therefore,the protection of copyright is the premise and basis for the realization of the value of the copyright law.The public examination questions possess all the attributes and characteristics of the works,and they are not substantially different from other works.As with other works,the public examination questions should be protected by copyright in light of the legal spirit that the same thing should be treated in the same way.Therefore,conferring the copyright protection to the public examination questions is a requirement for the realization of the value objective of the copyright law.The balance of interests is the core spirit and inherent mission of the copyright law.Protection of copyright is the basis and premise of the balance of interests in the copyright law.Of course,there is a conflict between the copyright protection of public examination questions and the subsequent use thereof.In this case,one cannot exclude the copyright protection of the public examination questions just because of the necessity and rationality of the subsequent use of the public examination questions,but should strike a prudent balance of interests on the premise of acknowledging the copyright protection of the public examination questions.The public interest is a crucial factor that needs to be considered when social relations are reconciled in accordance with the copyright law.Public interest and individual interest are not antagonistic.The public interest stems from the individual interests,and it is a general,stable and repetitive interest contained in the individual interests.The realization of individual interests is conducive to the realization of the public interests.The public interest exists for ensuring the maximization of individual interests.The principle of public interest is not to sacrifice individual interests,but to render individual interests succumbing to the public interest in particular circumstances,and such concessions can only be made in such a way that damages to individual interests are minimized.The public interest attribute of the public examination questions is mainly reflected in the public interest attribute of the public examination itself.After the public examination,the questions involved basically do not implicate much many public interests.Therefore,conferring copyright protection to public examination questions does not violate the principle of public interest.Of course,the principle of public interest will limit the exercise of the copyright of public examination questions.Nevertheless,granting the copyright protection to public examination questions is in line with the trend of reform and development of the examination system in China,and boasts the advantages of conveniently and efficiently resolving the copyright issues involved in the public examination questions,curbing the excessive development of public examination questions,promoting fair competition and benign development of public examinations and social examinations to facilitate the development and gradual improvement of the examination system in China,and incentivizing public examination designing organizations to continuously improve the quality of the designed questions.Chapter Ⅲ focuses on analyzing the copyright issue on the use of others’ works in public examination papers.Although the protection of copyright is the direct purpose of the copyright law,public interest is also a significantly important consideration in the copyright law.When public interest obviously predominates,it is justified and necessary to conditionally restrict copyright to strike a balance between public interest and individual interest.Fair use,statutory license,and compulsory license are important adjustments for balancing individual interests and public interests in the copyright law.For the purpose of examinations,especially for the purpose of public examinations,the use of others’ works in the process of compiling examination papers has the justification and rationality of fair use,is in line with the basic requirements for the three-step test,and should be fair use.The existing China’s copyright law does not specifically stipulate the circumstances of fair use for the purpose of examination.In the judicial practice,use of others’ works in the national unified examination papers was modified to be incorporated into the situations of fair use in the performance of official duties,and use of others’ works in the internal school examinations was modified to be included in the situations of fair use for classroom teaching.Constrained by the current provisions of the China’s copyright law,this action is an expedient solution,but it is not a permanent solution after all,and it seems to be far-fetched.Moreover,the current law cannot encompass all types of examinations that should have been included in the situations of fair use.Based on the analyses and studies on the examinations,the public examinations,the fair use system,and the current copyright law in China and extraterritorial instances of legislation,this paper proposes separately establishing rules of fair use in the case of examinations.Fair use of others’ works in the course of designing public examination questions shall comply with the following conditions: they shall be used for non-profit purposes and shall not be extended to subsequent use after the examination;the works used shall be others’ published works(except for the examination papers themselves),and the authors does not declare rights reserved;the right of authorship should be respected,and the signature may not be indicated if inappropriate,but signature shall be indicated on the examination papers when published after the examination,unless otherwise agreed by the parties;and the right of integrity shall be respected and necessary changes may be made to the work without prejudice to the author’s reputation.Chapter Ⅳ mainly concentrates on discussion as to the copyright issue about the subsequent use of public examination questions.The ownership of the copyright of public examination questions are respectively determined by the types of works.In general,in terms of an entire set of public examination paper,it belongs to the work of a legal entities and falls into the category of compilation works.As the author of the compilation work of a whole set of examination paper,the public examination designing organization enjoys the copyright of the compilation work,and also has the individual copyright to separately exploit each of the examination questions included in the whole set of examination paper.The copyrights of others’ works contained in the public examination papers belong to the copyright holders of the original works.When exploiting the public examination questions,a third party is required to respect the copyrights of the examination questions designing organizations and the copyrights of others’ works included in the public examination papers.As for the subsequent use of the examination papers,the public examination questions designing organizations have to respect the copyrights of others’ works contained in the examination papers.Due to the publicity,authority and irreplaceability of the public examination itself,the public examination papers still have certain public interest attributes after the examinations,and people have reasonable needs for access and use thereof.Such needs provoke a severe conflict with the protection of the copyright of the examination questions in the social reality in China.Although the China’s copyright law stipulates some situations of fair use and legal license use,the stipulations are still insufficient to cope with the above difficulties.To this end,this article proposes supplementing two statutory licenses of the subsequent use of public examination questions by question designing organizations and a third party,and establishing a system,in which the examination designing organizations uniformly charge copyright royalties and transfer them to copyright holders.Chapter Ⅴ proposes some suggestions for perfecting the copyright law,and drafts proposed legislative provisions of establishing fair use for the purpose of examinations,modifying fair use in the performance of official duties,and establishing ownership,exercise and restriction of the copyright of the public examination questions,based on the practical problems confronted with the copyright of the public examination questions in China nowadays in conjunction with the current provisions of the China’s copyright law.