Rapporteur Report: Reformulating Fair Use: Copyright Protection Facilitating OER - A Comparative Review of Latest Proposed Copyright Law Amendment in Taiwan

OE Global Rapporteur Report

Reformulating Fair Use: Copyright Protection Facilitating OER - A Comparative Review of Latest Proposed Copyright Law Amendment in Taiwan

Report submitted by: Christina Riehman-Murphy, Penn State University Libraries

In light of the latest copyright law amendment provisions in Taiwan, Professor Ouyang explores possible alternatives for dealing with the fair use doctrine. He posits that the 1998 Copyright Law (amended in 2019) lays the burden of proof on the alleged copyright infringer, which is both difficult and time-consuming. In addition the following issues in the law impede building up the capacity of stakeholders to create, re-use, adapt, and redistribute OER, namely:

  • Limited coverage in Article 46 which focuses on acts of reproduction and in-class teaching
  • Limited coverage in Article 47 which focuses on textbooks reviewed and approved by education administrative agencies
  • Case-by-Case eligibility where the Doctrine of Fair Use is determined on a case-by-case basis in reference to the elements in Article 65 (I shall not constitute infringement on economic rights of the work, II exploitation of the work’s current and potential market value)

The proposed 2021 amendment is written to address those complexities, shift the burden of proof, and make fair use a more accessible defence against claims of copyright infringement. Some of the key proposals in the amendment are to:

  • broaden coverage to include copyright protection for acts of adaption, distribution, public performance, public presentation, re-public communication in addition to reproduction
  • extend coverage to acts of public broadcast, public transmission, re-public communication provided that reasonable measures have been taken to prevent reception by non students
  • extended protection expressly to distance education
  • provide no protection for profit-making uses
  • require appropriate compensations

Professor Ouyang concludes that although there will still be issues to tackle that may be solved by common data pools and comparative approaches, ultimately the merits of the draft amendment are significant. It will reduce complexities in applying the Fair Use Doctrine and it will create a legal regime more favorable to promote OER development.

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