• A Chink in the Armor: Update on US Copyright Secure Test Registrations

    Testing programs have long relied on the U.S. Copyright Office’s “secure test” registration process as an essential part of any test security program. This special copyright registration process has existed since 1978, and allows the copyright holder to register its high-stakes tests confidentially, without the need to deposit a publicly available copy of the registered materials. In the summer of 2017, the Copyright Office issued an interim rule making several significant modifications to the secure test rules, which triggered a number of concerns among members of the testing industry. Among other things, the new procedures called into question whether certain forms of technology-based tests could still be registered, whether the Copyright Office would continue to accept the registration of item banks, and whether certain test delivery methods (such as on-demand testing and remote proctoring) preclude the use of the secure test registration process.

    In response to the outcry from many members of the testing industry, the Copyright Office issued a supplemental interim rule in November 2017. Although the supplemental rule did not address all of the industry’s concerns, it created a new “group registration” process that the Copyright Office contends will allow testing programs to register large volumes of test questions in a single application. The Copyright Office currently is accepting public comments on its interim rule and supplemental interim rule. Separately, the Copyright Office has stated its intention to revisit the existing regulatory definition of a “secure test.” It intends to issue a Notice of Proposed Rulemaking later this year after reviewing submitted comments.

    As a result of these new developments, an important aspect of your program’s intellectual property protection is currently in flux. During this session, attorneys Alan Thiemann (General Counsel of ATP) and Jennifer Semko (Baker McKenzie) will provide an overview of the Copyright Office’s interim and supplemental rules, efforts by members of the testing industry to obtain changes to these new rules, and the status of communications with the Copyright Office. There will be a Q&A opportunity so the speakers can obtain input and feedback from attendees so as to better inform their future communications with the Copyright Office about the concerns of the testing industry.

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