720 Tests, Answer Material for Tests, and Secure Tests
Tests, answer material for tests, and secure tests may be registered with the U.S. Copyright Office if they contain a sufficient amount of original authorship. Specifically, the Office may register a claim to copyright in a test, a test combined with an answer sheet, or an answer sheet by itself, if the work contains a sufficient amount of creative expression in the form of questions and/or answers. See Registration of Claims to Copyright: Inquiry—Blank Form, 44 Fed. Reg. 69,977, 69,977 (Dec. 5, 1979).
Tests and answer material for tests are among the nine categories of works that can be specially ordered or commissioned as a work made for hire, if the parties expressly agree in a signed written instrument that the work shall be considered a work made for hire. See 17 U.S.C. § 101 (definition of “works made for hire”). For a detailed discussion of works made for hire, see Chapter 500, Section 506.
Submitting an online application through the Office’s electronic registration system is the preferred way to register these types of works. In all cases, the applicant should provide the name of the author who created the questions and/or answers that appear in the test, together with the name of the claimant who owns the copyright in that material. The Literary Division may accept a claim in “text” if the work contains a sufficient amount of written expression, or may accept a claim in “artwork” or “photograph(s)” if the work contains a sufficient amount of pictorial or graphic expression. When completing an online application, this information should be provided in the Author Created field, and if applicable, also in the New Material Included field. When completing a paper application on Form TX, this information should be provided in space 2, and if applicable, also in space 6(b). For guidance on completing these portions of the application, see Chapter 600, Sections 618.4 and 621.8.
For guidance concerning the deposit requirements for secure tests, see Sections 720.2 and 720.4. The deposit requirements for non-secure tests are discussed in Chapter 1500, Section 1509.1(G).
720.1 Secure Tests
A “secure test” is a nonmarketed test that is administered under secure conditions at specified centers on specified dates where all copies of the test are accounted for and either destroyed or returned to restricted and locked storage after each administration. A test is considered nonmarketed if copies of the work are not sold, but instead are distributed and used in such a manner that the test sponsor or publisher retains ownership and control of the copies. 37 C.F.R. § 202.20(b)(4). Examples of secure tests include high school equivalency tests, tests that are used to determine eligibility for admission to an educational institution, tests that are used to determine placement in or credit for undergraduate and graduate course work, tests that are used to determine eligibility for scholarships and professional certifications, and the like. Deposit Requirements: Proposed Rulemaking, 42 Fed. Reg. 59,302, 59,304 (Nov. 16, 1977).
The U.S. Copyright Office is required to make “the articles deposited in connection with completed copyright registration” available for “public inspection.” 17 U.S.C. § 705(b). The Office recognizes that retaining a complete copy of a secure test and making those materials available for public inspection could prejudice the future utility, quality, and
