U.S. Copyright Office Responds to Test Publishers' Concerns

Questions Still Remain

"While it may not have been a complete about-face, this month's notice modifying its June 12 Interim Rule  [which changed longstanding procedures for registering secure tests], at least represents an attempt by the Copyright Office to fix the problems it created by the original Interim Rule," stated ATP General Counsel Alan Thiemann.

The notice, issued on November 13, from the U.S. Copyright Office states, in part: "Based on the initial comments received on that interim rule, the Office has determined that there is an immediate need to establish a new group registration option for secure test questions and answers and other related materials (referred to as “test items”) that are stored in an electronic database, test bank, or other medium of expression. This interim rule incorporates most of the same procedures that the Office adopted in its recent interim rule on secure tests and adds additional procedures for group registration..." [Read full notice here: https://www.federalregister.gov/documents/2017/11/13/2017-24532/secure-tests  

"In response to the June 12 Interim Rule,  ATP and many individual testing organizations complained that preventing the registration of item banks was misguided, harmed those organizations building individual tests from item banks, such as CAT, LOFT, CMT, and failed to recognize the industry's technical advancements away from non-paper-based testing," Thiemann noted.   He added, "in responding to the Copyright office's actions, ATP also charged that the Interim Rule violated the Administrative Procedure Act because it adopted changes to existing regulations without the opportunity for public comment.  Though the Copyright Office continues to maintain that it does not have to follow APA notice and comment procedures - last month's modification at least represents an attempt by the Copyright Office to acknowledge and address problems it created." 

ATP,  joined by the Association of American Publishers, the Software & Information Industry Association and others, met twice with the Copyright Office (in July and September) to discuss the problem and, as a result, an alternative was proposed that would allow secure test items from an item bank to be registered as part of a "group registration."  The notice issued earlier this month adopts the "Group Registration Option for Secure Test Items" process - and explains how it will work; however, applicants may still elect to use the secure test procedures set forth in the June 12 Interim Rule.   

In a Legislative Alert sent out to ATP members, Thiemann also noted that "important questions about the new process still exist; the ATP intends to address these in our industry comments that will be submitted on December 11, 2017.  Furthermore, the Copyright Office did NOT amend its definition of "secure test" (originally written in 1978) as it applies to the new Interim Rule, so, from  ATP's perspective, until the definition is updated, there remains a problem which we will address in the December 11 comments. "

In the November 13th notice, the Copyright Office explains that:  Secure tests serve an important societal function, and that providing a secure method for registering copyright claims in those tests furthers the public good. Although the June 12, 2017 interim rule was aimed to better align secure test registration procedures with the Office's statutory obligations and general good practices for copyright registration, the Office also recognizes that the interim rule did not provide secure test publishers with a means for registering individual test items that are stored in a database or test bank without disclosing the content of these works.  To address these legitimate concerns, the Office has decided to issue another interim rule as part of this rulemaking, and to make that rule effective immediately.  Although this new secure item process is NOT identical to the old secure test registration process, it may provide some testing organizations with significant benefits, including that EACH item is separately registered if the item is deemed to be copyrightable in itself.  Thus, infringement of any single item is its own separate offense.  This factor would seem to have a positive effect in eliminating the ability of infringers to claim "fair use" of only a few items out of a test.  However, the Office examiner will be evaluating each and every item for its copyright eligibility, thus a significant cost may be associated with using the group registration process, because the Copyright Office will be imposing an hourly fee (expected to be $250) charged to the applicant for the examiner to review EACH item in redacted and unredacted form in order to approve them - so the Office warns that large item bank registrations could take "days" to review.   The Copyright Office has allowed an unlimited number of secure items to be part of a group registration, at least at this time.  The Office has indicated it will measure the burden on its examiners over the next several months, and is seeking public comments.  Another limitation is that all items in one group must be either published or unpublished - no mixture will be allowed - and they have been created by the same author and the copyright claimant must be the same for each item in the group.  For now, the Copyright Office has decided not to restrict the group registration to works made for hire. [ "Without any evidence to support the claim, the Office states that most secure tests are made as works for hire.  ATP seriously questions that assumption and will address it in the industry's comments which will be submitted on December 11.

ATP Members who have comments or questions related to what topics should be addressed in the December 11 comments, please send them to Alan Thiemann at [email protected]