[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]


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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.

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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\
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    \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).
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    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\
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    \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).
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    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\
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    \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.
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    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.
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    \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.
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    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.
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    \13\ 82 FR 52224 (Nov. 13, 2017). See 37 CFR 202.4(b), (k), 
202.13 (implementing the November 2017 Interim Rule).
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    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\
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    \14\ The public comments in this proceeding may be accessed from 
the Office's website at https://www.copyright.gov/rulemaking/securetests/.
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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\
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    \15\ 37 CFR 202.13(b)(1).
    \16\ See 17 U.S.C. 412.
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    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\
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    \17\ 37 CFR 202.13(b)(3).
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    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.''
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    \18\ 37 CFR 202.13(b)(1).
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    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\
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    \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).
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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