The Copyright Office recently issued an interim rule amending 37 CFR Parts 201 and 202 effective on July 12, 2017. The rule represents the first instance in more than thirty years where the Copyright Office has materially changed its special procedures for examining secure tests for copyright protection. A "secure test," is defined as a "a nonmarketed test administered under supervision at specified centers on specific dates, all copies of which are accounted for and either destroyed or returned to restricted locked storage following each administration. For these purposes a test is not marketed if copies are not sold but it is distributed and used in such a manner that ownership and control of copies remain with the test sponsor or publisher." 37 CFR 202.20(b)(4).

The summary provided by the Copyright Office explains, "The U.S. Copyright Office is issuing an interim rule that memorializes its special procedure for examining secure tests. The interim rule also includes a new workflow that will increase the efficiency of these examinations. Going forward, applicants must submit an online application, upload a redacted copy of the entire test to the electronic registration system, and complete and submit a brief questionnaire about the test. If the work appears to be eligible for the secure test process, the Office will contact the applicant and schedule an appointment to deliver the test to the Office in person. On the appointed date, the applicant must bring a copy of the application and a complete unredacted copy of the actual test. In addition, the applicant must bring a copy of the redacted version of the test, and a signed declaration confirming that this copy is identical to the redacted copy that was uploaded to the electronic registration system. If the Office confirms that the work qualifies as a secure test, it will examine the test as a whole to determine if it contains sufficient copyrightable authorship. If the Office registers the secure test, the registration will be effective as of the date that the Office received the application, filing fee, and the redacted copy of the entire test in proper form through the electronic registration system. The Office welcomes public comment on the interim rule."

More specifically, the interim rule changes the procedural process for secure test registration in the following ways:

  • Paper applications will no longer be accepted.
  • Prior to making an examination appointment, applicants must complete and upload a brief questionnaire about the test and also upload a redacted copy of the entire test.
  • The redacted copy should include:
    • An unredacted copy of the tile page for the test (if any);
    • A redacted copy of each page of questions;
    • The number that has been assigned to each question (if any); and
    • The page number that appears on each page of the test (if any).
  • Most of the content can be redacted as long as the applicant leaves a narrow vertical or diagonal strip of visible content.
  • Applicants must file a separate application, pay a separate fee, and upload a separate questionnaire for each secure test, or when registering multiple secure tests together as an unpublished collection, a unit of publication, or a group of updates or revisions to a database.
  • Secure tests cannot be registered together "with a database that has been used to create the test or a computer program that is used to administer the test." Registering a database or a computer program requires a separate application, fee, and deposit. The Copyright Office will not examine a database or a computer program under the special procedure for secure tests.
  • "Questions that are stored in-or randomly pulled from-an electronic database or a test bank cannot be registered as a secure test if the database or test bank is simply a medium for storing questions and does not represent the actual test."
    • If a secure test is administered on a computer or other electronic device, the applicant may bring an electronic file that contains a complete copy of the actual test for review at the Copyright Office.
  • Secure test claims will be reviewed in the order they are received and will not be given priority over other claims with an earlier filing date.

These procedural changes do not appear to alter the scope of protection available previously for secure tests. The Interim Rule does not change the definition of secure tests or otherwise limit the copyright protection available. The rule alters only the process for an application for registration. Further, the Copyright Office indicates that much of the Interim Rule simply codifies existing procedures for examining secure tests that have been followed for years. Ultimately, you can still obtain a copyright for secure tests, but must familiarize yourself with the new procedures for doing so. The Copyright Office is accepting public comments on this rule through December 11, 2017. Please contact Venable if you or your organization have additional questions regarding the interim rule or would like assistance in crafting a responsive comment.