國家圖書館強制典藏著作的憲法問題

The Constitutionality of the Compulsory Delivery of the Publication to the National Central Library

本文係探討目前臺灣對著作的強制送存圖書館義務的憲法問題。首先圖書館法強制出版人必須送存著作一本予國家圖書館典藏之規定，此典藏義務亦即會導致公開閱覽，即可能牴觸憲法保障人民擁有的出版權，應包括秘密出版之權利。同時此無償的送存，如果書價甚貴，更會侵害人民財產權。而國家圖書館擁有的處罰權力也違反行政執行法的相關規定。本文另一個議題在探究我國目前要求碩、博士論文必須送交圖書館並授權公開閱覽。甚至教育部也曾可慮以行政命令要求以電子檔型式送存。這個強制規定是否過度擴張著作權合理使用之範圍，導致著作人喪失著作利益。同時也會妨礙國家文化與科技的進步。

This article discusses the constitutional issue about the compulsory duty of the author in Taiwan of delivering one copy of everyone publication to the National Central Library on the purpose of collection and future research. There is no doubt that this purpose can meet the public interest, but the handover of the publication can publicize its contents, and may infringe the privacy and against the will of the author. As the human right of publication shall cover the right of "publication in secret", this regulation's constitutionality is doubtful. This regulation can also violate the property right of author while the publication may be expensive.
Concerning the right interpretation about the meaning of reasonable use of copyright, this article will also question the constitutionality of nowadays' regulations, made by Law and Administrative Order of Ministry of Education, which require that every degree thesis (Master & Doctoral degree) shall be delivered to the library, not only a paper version but also a computer one, and the author shall authorize compulsorily that the public may use, as well as copy some part of the thesis. This means that all academic thesis shall be regarded to be a "public property", and the author will lose any economic benefits from this compulsory duty. This article finds out that it has exaggerated the "reasonable use principle" of copyright after a throughout rechecking of its legitimacy.