On May 8, 2020, the United States Copyright Office published an Interim Rule and Request for Comment delineating a new definition for the term “secure test” as a result of the current COVID-19 pandemic. This interim rule allows otherwise-eligible tests that are administered online during the national emergency to qualify as secure tests for registration with the Copyright Office, as long as sufficient security measures are followed. This new definition of “secure tests,” which formerly required in-person administration “at specific centers,” permits test publishers to obtain copyright registration for tests administered remotely due to COVID-19 while maintaining the confidentiality of their examinations.
By way of background, the Copyright Office has provided special registration procedures for “secure tests” that require the maintenance of confidentiality of the examination content. The current interim regulations define a “secure test” as “a non-marketed test administered under supervision at specified centers on scheduled dates, all copies of which are accounted for and either destroyed or returned to restricted, locked storage following each administration.” (37 C.F.R. 202.13(b)(1)).
The Copyright Office previously issued several interim rules regarding secure testing. On June 12, 2017, the Copyright Office issued an interim rule that memorialized aspects of its secure test procedure and adopted new definitions and processes. The secure test process allows the Copyright Office to prescreen an application to determine whether the work appears to be eligible as registration for a secure test. If so, the Copyright Office schedules an in-person appointment for examination of an unredacted copy of the test. If the examiner determines that the relevant requirements have been met, the examiner will register the claim and add an annotation to the certificate of registration reflecting that the work was examined under the secure test procedure.
The registration date under the June 12, 2017 interim rule is the date when the application is completely submitted, rather than the later date when the examination took place. On November 13, 2017, the Copyright Office issued an additional interim rule that permitted registration of a group of test items stored in a database or test bank. At the time the Copyright Office issued these interim rules, relevant stakeholders noted that the definition of “secure tests” should be adjusted to accommodate secure online testing, but no further changes were made by the Copyright Office until the instant interim rule.
The most recent May 8, 2020, interim rule is an attempt by the Copyright Office to address the pandemic’s disruptions to test publishers’ normal processes for administering secure tests. As a result of the COVID-19 pandemic, some tests that are normally administered in-person are now being administered remotely, with test-takers completing the examination online from a separate location. Accordingly, test publishers have expressed concern that this remote process will make examinations ineligible for registration as secure tests, as they will not be administered “at specific centers.” This seemingly forces test publishers to choose between sacrificing the confidentiality of their examinations by obtaining registration through the process for literary works, or delaying registration until the pandemic no longer necessitates remote administration and potentially sacrificing legal protection.
The May 8 interim rule provides that an otherwise-qualifying test shall be considered a secure test if it normally is administered at specific centers but is being administered remotely due to the pandemic. The rule still requires that the test administrator employ measures to maintain the security and integrity of the test that the administrator reasonably determines to be substantially equivalent to the security measures from normal, in-person administration. Discretion to determine appropriate testing security is left to test administrators, as the May 8 interim rule does not prescribe specific measures that are required.
The Copyright Office did note that it “expects that sufficient measures typically would include 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.” The requirement that a secure test be administered “under supervision” remains. Accordingly, proctors or an equivalent must supervise administration of the test.
In addition, the May 8 interim rule changes the definition regarding the storage of secure tests. Rather than requiring that that all copies are returned to “restricted locked storage,” the definition also now permits copies to be returned to “secure electronic storage.”
The May 8 interim rule is temporary. The Copyright Office has stated that this modification to the definition of “secure tests” will last only until the national emergency has ended. However, the Copyright Office has acknowledged that, depending how successful this interim rule is, remote testing conditions may be permitted under the secure test regulations even after the emergency period has ended.
Comments on the May 8 interim rule must be made in writing and must be received by the Copyright Office no later than June 8, 2020. Comments should be submitted electronically through regulations.gov. The Copyright Office also has noted that ex parte meetings may be beneficial, and will issue guidelines by which parties can request such meetings.
Ballard Spahr has substantial experience advising clients concerning the interim rules for the registration of secure tests as wells as registering secure tests with the Copyright Office.
Copyright © 2020 by Ballard Spahr LLP.
(No claim to original U.S. government material.)
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.
This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.