An Interview by Rebecca R. Hastings, MS, SPHR, PHRca, Hastings Program Services, LLC
Organizations seeking to copyright their exam content with the Copyright Office should be prepared for a lengthy, costly and often frustrating process before obtaining registration certificates.
During an ATP Workforce Skills Legal Landscape webinar hosted by Hogan Assessments in February of this year, participants learned the benefits and challenges of copyright registration, the intricacies of new data privacy rules and other noteworthy developments affecting certification and licensing organizations.
When it comes to secure test copyright registration, co-presenter Jennifer Ancona Semko, Esq., Partner in the Washington D.C. office of Baker McKenzie, a global law firm, asked a question on many people’s minds: Why do we even bother with copyright registration? She gave an equally succinct answer, noting that “it is the only thing that ultimately makes it possible for you to bring a lawsuit against someone” — and only if you have your registration certificate in hand. She noted that certain “really useful remedies,” like attorney’s fees and statutory damages, only apply if you are registered.
Semko explained that the simple copyright process which existed prior to June 2017 changed significantly when an interim rule was released by the Copyright Office — without notice or comment. The rule stated that questions stored in a test bank could not be registered. The furor that ensued — in the form of many questions, comment letters and meetings — led to the development of a new group registration option called "Group of Secure Test Items." This allows organizations to register an entire item bank, with each item considered a separate copyright work.
Though there are “a lot of upsides to group registration,” according to Semko, including the ability to collect higher statutory damages and an easier way to prove infringement, there are considerable downsides as well. These include much longer copyright office appointments, at a rate of $250/hour per examiner, and the need for each item to pass the test of creative independence. This level of scrutiny, along with the subjective nature of the determinations made by different examiners, means that organizations are likely to have some items rejected — as many as 18% in one case — with rejected items listed on the public copyright certificate. Although the copyright office is trying to make this process work, organizations should evaluate the risks and rewards of copyright registration carefully, before proceeding.
A member of the ICE Publications and Editorial Committee, Rebecca Hastings, spoke with Semko to ask her to provide additional guidance to help organizations determine next steps.
Rebecca Hastings: What sort of timeline would you recommend certification organizations use to gain internal support for proceeding with group registration for a single program?
Jennifer Semko: Overall, a testing program should expect the entire group registration process to take at least six to seven months. Once the program has prepared redacted copies of its test items and has completed the secure test questionnaire, those documents are submitted online with the copyright registration application. From there, it is a waiting game. The program must wait to be contacted by a Copyright Office examiner, who will confirm whether the test qualifies as a secure test. If so, the examiner will offer some dates and times for the in-person evaluation of the un-redacted test questions.
Anecdotally, we are hearing that most programs are waiting five to seven months after their application is submitted before hearing back from the Copyright Office. It may take a few weeks before the appointment occurs, depending on the availability of both the examiner and the testing program representative who will need to visit the Washington D.C. based office.
After the appointment, the program will have to wait several more weeks — possibly months, depending on the workload at the Copyright Office — to receive the registration certificate(s) in the mail. The process can be expedited if litigation is pending or expected, for an additional special handling fee of $800. Of course, things are still evolving with this new registration procedure, and the backlog at the Copyright Office fluctuates, so the length of the process can vary.
RH: For what financial investment should an organization with a 2,000-item test bank plan?
JS: For a 2,000-item test bank, a program should expect to spend roughly $1,000 in fees to the Copyright Office, plus any additional costs associated with travel to Washington or use of an outside law firm. The primary costs associated with a group registration are the Copyright Office application fee (now $65 per online application, as of the March 20, 2020 fee increase) and the $250 per hour fee charged by the Copyright Office examiner for the in-person appointment. Based on the speed of the examiners' review, as reported by programs that have gone through the process, you should expect a review of 2,000 items to last three to four hours. Some programs engage legal counsel to assist with the preparation and filing of the copyright registration application and to handle the registration appointment, which likely increases the total cost by a few thousand dollars.
Impact of the Coronavirus
Organizations exploring online proctoring as a short- or long-term response to coronavirus-related test center closures should be aware of Interim Rule for a Secure Test 6.12.2017. In the interim rule, there is conflicting information regarding live remote proctoring and its impact on getting copyright protection on a secure test or group of secure test Items. Depending on how one interprets the interim rule, live remote proctoring may be a deal breaker. According to Semko, the Copyright Office does not consider remote proctoring a secure test as defined in the 1978 regulations, though they acknowledge the definition might need updating, which they haven’t gotten around to yet.
Although the existing “secure test” registration option continues to be available for those organizations delivering a single, static test form, this is not generally deemed a useful alternative for modern computer-based testing. However, as organizations respond to the challenges of COVID-19 and continue to address and plan for current and future test center closures and alternative testing methods, copyright registration to protect test items, banks and forms should remain an important consideration.