Secure Tests
| Published date | 08 May 2020 |
| Record Number | 2020-09916 |
| Section | Rules and Regulations |
| Court | Library Of Congress,U.s. Copyright Office |
Federal Register, Volume 85 Issue 90 (Friday, May 8, 2020)
[Federal Register Volume 85, Number 90 (Friday, May 8, 2020)]
[Rules and Regulations]
[Pages 27296-27299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09916]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
U.S. Copyright Office
37 CFR Part 202
[Docket No. 2017-8]
Secure Tests
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The U.S. Copyright Office is issuing an interim rule amending
its regulations governing the registration of copyright claims in
secure tests in order to address a disruption caused by the COVID-19
pandemic. The Office has become aware that certain examinations that
normally would qualify for registration as secure tests may be
ineligible for this option because they currently are being
administered remotely rather than at specified testing centers. The
interim rule allows otherwise-eligible tests that are administered
online during the national emergency to qualify as secure tests,
[[Page 27297]]
provided the test administrator employs sufficient security measures.
In addition, the Office is requesting public comment on the
technological requirements needed for examination of secure test claims
via secure teleconference. Finally, the Office is announcing its
intention to issue guidelines according to which parties may request ex
parte meetings with the Office in this proceeding.
DATES: Effective May 8, 2020. Comments must be made in writing and must
be received by the U.S. Copyright Office no later than June 8, 2020.
ADDRESSES: For reasons of government efficiency, the Copyright Office
is using the regulations.gov system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through regulations.gov. Specific instructions
for submitting comments are available on the Copyright Office website
at https://copyright.gov/rulemaking/securetests. If electronic
submission of comments is not feasible due to lack of access to a
computer and/or the internet, please contact the Office using the
contact information below for special instructions.
FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and
Associate Register of Copyrights, [email protected]; Robert J.
Kasunic, Associate Register of Copyrights and Director of Registration
Policy and Practice, [email protected]; Kevin R. Amer, Deputy General
Counsel, [email protected]; or David Welkowitz, Attorney Advisor,
[email protected]. They can be reached by telephone at 202-707-
3000.
SUPPLEMENTARY INFORMATION:
I. Background
Under Section 408 of the Copyright Act, the U.S. Copyright Office
is responsible for registering copyright claims.\1\ In so doing, the
Office is obligated to obtain a registration deposit that is sufficient
to verify the claim and to provide an archival record of what was
examined and registered.\2\ Deposits of unpublished material must be
kept for the full term of copyright protection,\3\ and deposits are
available for public inspection.\4\ The Act, however, authorizes the
Office to issue regulations establishing ``the nature of the copies . .
. to be deposited'' in specific classes of works and to ``permit, for
particular classes, the deposit of identifying material instead of
copies or phonorecords.'' \5\
---------------------------------------------------------------------------
\1\ 17 U.S.C. 408.
\2\ Id. 408(b), 705(a).
\3\ Id. 704(d).
\4\ Id. 705(b).
\5\ Id. 408(c)(1).
---------------------------------------------------------------------------
Pursuant to that authority, the Office has long provided special
registration procedures for ``secure tests'' that require the
maintenance of confidentiality of their contents. These include tests
``used in connection with admission to educational institutions, high
school equivalency, placement in or credit for undergraduate and
graduate course work, awarding of scholarships, and professional
certification.'' \6\ Current regulations define a secure test as ``a
nonmarketed test administered under supervision at specified centers on
scheduled dates, all copies of which are accounted for and either
destroyed or returned to restricted locked storage following each
administration.'' \7\
---------------------------------------------------------------------------
\6\ 42 FR 59302, 59304 & n.1 (Nov. 16, 1977); see also 43 FR
763, 768 (Jan. 4, 1978) (adopting the definition of a secure test).
\7\ 37 CFR 202.13(b)(1).
---------------------------------------------------------------------------
On June 12, 2017, the Office issued an interim rule (the ``June
2017 Interim Rule'') that memorialized certain aspects of its secure
test procedure and adopted new processes to increase the efficiency of
its examination of such works.\8\ 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.\9\ This procedure allows the Office to
prescreen an application to determine whether the work appears to be
eligible for registration as a secure test. If the test appears to
qualify, the Office will schedule an in-person appointment for
examination of an unredacted copy of the test.\10\
---------------------------------------------------------------------------
\8\ 82 FR 26850 (June 12, 2017); see 37 CFR 202.13,
202.20(b)(3), (c)(2)(vi) (implementing the June 2017 Interim Rule).
\9\ 37 CFR 202.13(c)(2).
\10\ Id.
---------------------------------------------------------------------------
During the in-person meeting, the examiner will review the redacted
and unredacted copies in a secure location in the presence of the
applicant or his/her representative.\11\ If the examiner determines
that the relevant legal and formal requirements have been met, he or
she will register the claim(s) and add an annotation to the certificate
reflecting that the work was examined under the secure test procedure.
The registration is effective as of the date that the Office received
in proper form the application, questionnaire, filing fee, and the
redacted copy that was uploaded to the electronic registration
system.\12\ The June 2017 Interim Rule thus gives publishers the
benefit of establishing as their effective date of registration the
date when those materials are submitted to and received by the Office
electronically, rather than the later date when the in-person
examination takes place.
---------------------------------------------------------------------------
\11\ The applicant must bring to the meeting, among other
materials, a signed declaration confirming that the redacted copy
brought to the meeting is identical to the redacted copy that was
uploaded to the electronic registration system. Id.
202.13(c)(3)(iv).
\12\ 82 FR at 26853.
---------------------------------------------------------------------------
On November 13, 2017, in response to concerns raised by
stakeholders following the June 2017 Interim Rule, the Office issued a
second interim rule (the ``November 2017 Interim Rule'') to permit
registration of a group of test items (i.e., sets of questions and
answers) stored in a database or test bank and used to create secure
tests.\13\ For these works, the November 2017 Interim Rule adopted most
of the same registration procedures that apply to secure tests under
the June 2017 Interim Rule.
---------------------------------------------------------------------------
\13\ 82 FR 52224 (Nov. 13, 2017). See 37 CFR 202.4(b), (k),
202.13 (implementing the November 2017 Interim Rule).
---------------------------------------------------------------------------
The Office invited public comment on both the June 2017 and the
November 2017 Interim Rules. The Office received a total of thirty-nine
responses from a wide variety of testing organizations and other
interested parties.\14\
---------------------------------------------------------------------------
\14\ The public comments in this proceeding may be accessed from
the Office's website at https://www.copyright.gov/rulemaking/securetests/.
---------------------------------------------------------------------------
II. The Interim Rule
While the Office is continuing to evaluate the secure tests
regulations as a whole to determine whether changes may be warranted
before issuing a final rule, it is issuing an additional interim rule
at this time to address a specific disruption currently affecting test
publishers' ability to exercise this option. The Office has become
aware that, as a result of the COVID-19 pandemic, certain tests that
normally are administered with test-takers physically assembled at one
or more locations will instead be administered remotely, with test-
takers completing the exam online from their homes. Publishers have
expressed concern that this change may make the tests ineligible for
registration as secure tests, as they will not be administered ``at
specified centers.'' \15\ As a result, these publishers may be forced
to choose between registering their tests under the normal procedure
for literary works (thus forfeiting confidentiality) and either
delaying registration until they can administer the test according to
the existing rule or foregoing copyright
[[Page 27298]]
registration altogether. If a publisher chooses to delay registration,
it could lose the benefit of an earlier effective date of registration.
Although the building that houses the Copyright Office is currently
closed to the public and therefore staff are unable to conduct in-
person examinations or issue registrations for secure tests, as noted
above, an eligible secure test publisher can establish an effective
date of registration during this time by electronically submitting an
application, questionnaire, filing fee, and redacted copy to the
Office.\16\
---------------------------------------------------------------------------
\15\ 37 CFR 202.13(b)(1).
\16\ See 17 U.S.C. 412.
---------------------------------------------------------------------------
The interim rule amends the regulations to provide an accommodation
for tests that would be eligible for secure test registration but for
the pandemic. The rule provides that an otherwise-qualifying test shall
be considered a secure test if it normally is administered at specified
centers but is being administered online during the national emergency,
provided the test administrator employs 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. The rule does not specify particular measures that are
required to meet this standard, as the Office believes that publishers
generally should have flexibility to tailor such processes to their
specific needs. But as examples, the Office expects that sufficient
measures typically would include some combination of video monitoring
and/or recording, the disabling of certain functions on test-takers'
computers (e.g., copying and pasting), technological measures to
prevent access to external websites and other prohibited materials, and
identity verification of the individual taking the test. It also should
be noted that the interim rule does not alter the requirement that a
secure test be administered ``under supervision,'' which means that
``test proctors or the equivalent supervise the administration of the
test.'' \17\
---------------------------------------------------------------------------
\17\ 37 CFR 202.13(b)(3).
---------------------------------------------------------------------------
The rule also makes a clarifying change to the portion of the
definition concerning the storage of secure tests. The current language
requires all copies of a secure test to be ``either destroyed or
returned to restricted locked storage following each administration.''
\18\ To make clear that this provision does not preclude the retention
of digital copies, the interim rule provides that copies also may be
returned to ``secure electronic storage.''
---------------------------------------------------------------------------
\18\ 37 CFR 202.13(b)(1).
---------------------------------------------------------------------------
As the wording of the interim rule makes clear, the modification of
the definition of secure tests is temporary, lasting only until the
COVID-19 emergency ends. The Office is providing this flexibility to
ensure that test administrators can continue to offer socially valuable
secure tests during the national emergency. This accommodation should
not be seen as determinative of the final rule in this proceeding,
which will be established on the basis of the overall rulemaking
record. The Office recognizes, however, that the ``specified centers''
limitation was a concern for many test publishers even before the
emergency, with several commenters in this proceeding urging the Office
to amend that language to facilitate a broader range of testing models.
The Office therefore will monitor the operation of the interim rule to
help it evaluate whether and under what conditions remote testing
should be permitted under the secure tests regulations once the
emergency period ends.
In light of the ongoing national emergency, the Copyright Office
finds good cause to publish these amendments as an interim rule
effective immediately, and without first publishing a notice of
proposed rulemaking, ``because of the demonstrable urgency of the
conditions they are designed to correct.'' \19\
---------------------------------------------------------------------------
\19\ H.R. Rep. No. 1980, 79th Cong., 2d Sess. 26 (1946). See 5
U.S.C. 553(b)(3)(B) (notice and comment is not necessary upon agency
determination that it would be ``impracticable, unnecessary, or
contrary to the public interest''); id. at 553(d)(3) (30-day notice
not required where agency finds good cause).
---------------------------------------------------------------------------
III. Request for Comments
As noted, the Office is currently unable to conduct in-person
examination of secure test applications. The Office is exploring
possible options to provide such examinations via secure
videoconference. The Office invites comments regarding the
technological requirements that would be needed for test publishers to
participate in such a process. In particular, the Office is interested
in whether examination using the WebEx platform would be acceptable to
publishers, as that program is currently supported by the Library of
Congress. The Office requests that comments be limited to these topics.
IV. Ex Parte Communication
The Office has determined that informal communication with
interested parties might be beneficial in this rulemaking, including to
discuss how the change implemented by the interim rule has operated in
practice. The Office therefore intends to issue guidelines according to
which parties may request ex parte meetings with the Office in this
proceeding. Consistent with its practice in other rulemakings, the
Office will establish requirements to ensure transparency, including
that participating parties submit a list of attendees and a written
summary of any oral communications, which will be posted on the
Office's website. The ex parte guidelines will made be available at
https://www.copyright.gov/rulemaking/securetests when the Office
initiates the availability of such communications. No ex parte meetings
in this proceeding will be scheduled before that time.
* * * * *
List of Subjects in 37 CFR Part 202
Copyright, Preregistration and Registration of Claims to Copyright.
For the reasons set forth in the preamble, the Copyright Office
amends 37 CFR part 202 as follows:
PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT
0
1. The authority citation for part 202 continues to read as follows:
Authority: 17 U.S.C. 408(f), 702.
0
2. Amend Sec. 202.13 by revising paragraph (b)(1) to read as follows:
Sec. 202.13 Secure tests.
* * * * *
(b) * * *
(1) A secure test is a nonmarketed test administered under
supervision at specified centers on scheduled dates, all copies of
which are accounted for and either destroyed or returned to restricted
locked storage or secure electronic storage following each
administration. A test otherwise meeting the requirements of this
paragraph shall be considered a secure test if it normally is
administered at specified centers but is being administered online
during the national emergency concerning the COVID-19 pandemic,
provided the test administrator employs 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.
[[Page 27299]]
Dated: May 4, 2020.
Maria Strong,
Acting Register of Copyrights and Director of the U.S. Copyright
Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2020-09916 Filed 5-7-20; 8:45 am]
BILLING CODE 1410-30-P
