Copyright Office temporarily allows remotely proctored online exams to be considered “secure tests”

05.22.20 By:

On May 8, 2020, as a result of the current COVID-19 pandemic the United States Copyright Office published an Interim Rule and Request for Comment regarding a new definition for the term “secure test.” The Copyright Office also seeks public comments on the security procedures and technological requirements remotely proctored test providers use to protect the confidentiality of their tests and test questions. The public comment period for the Copyright Office’s May 2020 proposed interim rule ends on June 8, 2020.

In 2017 the Copyright Office issued the first set of rule changes to the secure test application process since 1978. As part of its interim rules changes, the Copyright Office updated the definition of a secure test to:

A non-marketed1  test administered under supervision at specified centers where test takers are assembled on scheduled dates, and where all copies of the test are accounted for and either destroyed or returned to restricted locked storage following each administration.

At that time, the Copyright Office maintained the requirement (over the request of many testing organizations) that to qualify as a secure test it must be administered at specified testing centers where test takers are assembled on scheduled dates. This effectively disqualified all remotely proctored online tests from being considered secure tests.

Now, the Copyright Office’s May 2020 interim rule amends the regulations in order 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 usually 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 she or he reasonably determines to be substantially equivalent to the security and integrity provided by in-person proctors.

The Copyright Office warns that this significant accommodation is temporary, lasting only until the COVID-19 emergency ends and when tests can again be administered at specified testing centers. However, the Copyright Office acknowledges that the “specified centers” limitation was a common concern for many testing organizations even before the emergency, with several commenters urging the Copyright Office to allow remotely proctored tests to also qualify as secure tests. To that end, the Copyright Office now states it “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.”

1The Copyright Office considers a test to be non-marketed if the copies 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.