Secure Tests Rulemaking

The United States Copyright Office has issued five 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 established a new group registration option for secure test questions and answers and other related materials (referred to as “test items”). This option permits 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 was intended 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 were being administered remotely. To ensure that tests that otherwise would have been eligible for secure test examination did not lose their eligibility for that reason, the interim rule allowed tests that were administered remotely to qualify as secure tests as long as the national emergency was in effect. 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 to amend 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 were temporarily suspended. The interim rule permitted applicants to request a remote examination by secure videoconference.

On June 1, 2023, the Office issued an interim rule that continues the May 8, 2020, interim rule indefinitely. By its own terms, the May 8, 2020, interim rule expired at the end of the national emergency. The June 2023 interim rule removes this time limitation and continues the expansion of the definition of secure tests under the same conditions as those contained in the 2020 interim rule.