Secure Tests Rulemaking

The United States Copyright Office has issued four interim rules governing its special procedure for examining secure tests.

The June 12, 2017, interim rule memorializes some of the Office’s existing procedures for examining secure tests while updating its procedures to increase the efficiency of the examination process. Under this rule, applicants must, among other things, submit an online application, a redacted copy of the entire test, and a brief questionnaire about the test through the electronic registration system. This procedure will allow the Office to prescreen an application to determine whether the work qualifies as a secure test. Only applicants whose works qualify will be granted an in-person examination appointment at the Copyright Office. During the appointment, the Office will examine the test as a whole to determine if it contains sufficient copyrightable authorship.

The November 13, 2017, interim rule establishes a new group registration option for secure test questions and answers and other related materials (referred to as “test items”). This option will permit registration of test items that are stored in an electronic database or test bank.

On May 8, 2020, the Office issued an interim rule that amends the definition of a secure test. This adjustment is intended to be temporary to accommodate the ongoing national emergency. Under the prior regulations, secure tests were required to be administered “at specified centers.” Due to the COVID-19 emergency, certain tests that previously were administered according to this rule are being administered remotely. To ensure that tests that otherwise would have been eligible for secure test examination do not lose their eligibility for that reason, the interim rule allows tests that normally would be administered at specified centers to be administered remotely. 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.

On February 19, 2021, the Office issued an interim rule that amends its procedures for examining applications to register secure tests and secure test items. Due to the COVID-19 pandemic, in-person examinations of applications to register secure tests and secure test items have been temporarily suspended. The interim rule permits applicants to request a remote examination by secure videoconference.