What Is Copyright Law and How Does It Apply to Testing Materials?

What Is Copyright Law and How Does It Apply to Testing Materials?

Overview

Copyright Law holds that an individual legal entity (the publisher) may own the rights to make and sell copies of an original work (sometimes referred to as an intellectual property). The rights of ownership of the work may be held by the publisher, but are more frequently held by an author who assigns his rights to a publisher in exchange for a contracted royalty based on returns from the sale of copies by the publisher. Copyright Law is therefore very important to authors and to members of the publishing industry. This industry includes book publishers, software publishers, test publishers, and many other types of businesses.

Users who possess a legitimate copy of a test purchased from a test publisher do not have the right to make copies of the test, or any part thereof, without a contract which assigns the publisher's right to make copies.

What Parts of Tests Are Considered Intellectual Property?

Test publishers take a position that all parts of a test -- test booklets and questionnaire forms, answer documents, keys, norms, manual and instructions -- are copyright. This position is quite defensible, in that actual reproductions of a work are fairly blatant violations of the priciples outlined in copyright laws. However, test publishers also contend that the information as to how to score a test (the key and norms) is intellectual property that is covered by copyright law. That is, you may buy a copy of a test manual, but you may not use the information contained therein, except as specified by the test publisher. This contention is only marginally defensible, though case law and out of court settlements seems to favor test publishers. In a sense however, asking people to refrain from using information contained in books that they have purchased (test manuals), becomes a bit ridiculous.

Because legal costs are so high, most individuals faced with a legal challenge by a large publishing company have backed down. None seem to have taken the more expensive route of trying to establish sensible definitive copyright precedents. Most test users concur that it is best to let the publishers "have it their way". After all, if publishers did not invest in producing the tests, either there would be no easy access to high quality tests, or test publishers would simply refuse to sell copies of their keys and norms. Keys and norms could be kept as a trade secret of the publisher and tests could only be scored by a licensed agent of the publisher.

The contention that test publishers make which would seem at first to be the most difficult to substantiate in a court, is the claim that whenever you administer a test to a client, you must use only the test forms which they sell -- and that you must purchase these forms for whatever price the publisher wishes to charge -- if you wish to use the test. This charge can range from 1 dollar per page to several dollars per page, even if the page is only a form on which an examinee marks down his responses to test questions. The questions may be on a different form altogether which you also must purchase.

The cost imposed on users by publishers seems to be born with good humor. Most people are happy to have some place where they can obtain tests, and realize that if publishers went broke, or if, as a group, they began to refuse to sell keys and norms, then the whole test user population would be worse off.

The writer believes that, on balance, only a few test publishers abuse copyright law. Traditionally publishing has been an honorable business. Today this tradition shines through, even though tarnished in some places.

Copyright © 1996, M.D. Angus & Associates Ltd.