ATP Submits Comments to Copyright Office

On May 8, 2020 the US Copyright Office (Library of Congress) published an Interim Rule and Request for Comment on new definition for the term "secure test" due to the COVID-19 pandemic.  This definition will enable the testing industry to use on a temporary basis the secure test registration procedures for tests that are remotely proctored "to accommodate the ongoing national emergency."  85 Fed. Reg. 27296 (May 8, 2020).  [ Read a copy of the notice HERE.] 

Comments on this Notice were submitted by ATP on June 8, 2020 [ The full comments can be downloaded here.]

Background: The previous Interim Rule, adopted on June 12, 2017, declared that item bank secure test items were ineligible for copyright protection under the "secure test" procedures.  This rule was subsequently modified by another version of the Interim Rule, adopted on November 13, 2017, when the Copyright Office established a "group registration" for secure test items.  However, under both of the 2017 Interim Rules, the Office has continued to apply its 1979 definition of "secure test" that holds a secure test may only be registered for copyright protection if it is "administered at a specified center" (i.e., at a single physical test center location), and on a scheduled date. The ATP, in its comments on the previous Interim Rules, submitted on April 2, 2018, noted that with the advent of online testing (e.g., CAT, CBT) any definition of "secure test" based on scheduled use of a test center is drastically outdated, since many online secure assessments are given "on demand" and are administered at home or at an office.

Despite its announced intention to open a public rule-making on a new definition of "secure test" in January 2018, the Office failed to resolve the testing industry's concerns about either the "group registration" process or the out-dated definition of "secure test."

Then there was a pandemic:  Because of the "COVID-19 disruption," the May 8, 2020 Notice states that the Office now recognizes that "certain examinations that normally would qualify for registration as secure tests may be ineligible for this option because they currently are being administered remotely rather than at specified centers. The interim rule allows otherwise-eligible tests that are administered online during the national emergency to qualify as secure tests."  The Office states that to be eligible, the test administrator must employ measures to maintain the security and integrity of the test that it reasonably determines to be substantially equivalent to the security and integrity provided by in-person proctors.

The new Interim Rule does not specify particular measures that are required to meet this standard - the Office states that publishers generally should have flexibility to tailor such processes to their specific needs.  But the Office does provide some examples of "sufficient measures" including some combination of video monitoring and/or recording, the disabling of certain functions on test takers' computers (e.g., copying and pasting), technological measures to prevent access to external websites and other prohibited materials, and identity verification of the individual taking the test.  In other words, the Interim Rule does not eliminate the requirement that a secure test must be administered ''under supervision,'' which means that ''test proctors or the equivalent supervise the administration of the test.''

Finally, the Office warns that, "This accommodation should not be seen as determinative of the final rule in this proceeding, which will be established on the basis of the overall rule-making record." The Office recognizes, however, that the "specified centers" limitation was a concern for many test publishers even before the COVID-19 emergency .  As noted earlier, ATP and other commenters urged the Office to amend the definition to facilitate a broader range of testing models. Accordingly, the Office has declared it will monitor what happens under the interim rule to help it evaluate whether ,and under what conditions, remote testing should be permitted under the secure tests regulations once the emergency period ends.

The Notice also indicates that the Office intends to discuss how the change implemented by this latest interim rule operates in practice with interested parties. To accomplish this input, the Office states it will issue guidelines identifying which parties may request ex parte meetings with the Office in this proceeding. General Counsel Alan Thiemann, noting that ATP has asserted the need for a new definition of "secure test" since April 2018, explained that the ATP will seek a meeting with the Office.  Thiemann went on to observe that, "Unfortunately, it has taken the lack of any "in-person" testing because of the COVID-19 virus problem to force the Copyright Office to act."