Academic journal article Journal of Law and Education

Copyrighted Standardized Tests: Is There a "Fair Use?"

Academic journal article Journal of Law and Education

Copyrighted Standardized Tests: Is There a "Fair Use?"

Article excerpt


Standardized tests have evolved in this country as the most efficient way to test the aptitude and progress of students and as a measure of knowledge for entrance into institutions of higher learning. In the creation and upkeep of such tests, repeated use of each test is imperative to allow test-makers to determine the validity of each test question. In order for this process of reuse to take place, the tests must of course remain secure and secret, making it apparent why the copyright of these tests has been asserted.

Copyright challenges to standardized tests have been taking place for some time, but such challenges came to the forefront in Chicago Board of Education v. Substance, Inc.1 This article will analyze this case and compare it to other cases to demonstrate challenges to standardized tests, and also to demonstrate how the copyright concept of "fair use" has been utilized to protect standardized tests. The fair use factors, as presented by case law in this article, will be shown as sufficient to protect copyrighted works and prevent the inappropriate use of such works.2

The first part of this article examines cases which focus on unfair uses of copyrighted works, specifically standardized tests. Chicago Board of Education v. Substance, Inc. and related cases that preceded it will be discussed. The courts in these cases applied the four fair use factors in their decisions and prevented the use of the copyrighted works to protect the value of their secrecy. The next part of this article will discuss a case which followed Chicago Board of Education and allowed the use of standardized test questions in limited circumstances. Analysis of these cases will allow further exploration of the concept of fair use and what types of uses qualify under this analysis.


The validation process is vital for a new battery of standardized tests.3 Reuse of standardized test questions is one prominent way of validating the tests. If performance on the same questions is inconsistent from year to year, this may indicate that selected questions are not well designed and, therefore, elicit random answers.4 Since validation depends upon the secrecy of the questions to elicit legitimate results, the validation of tests would be useless if the tests were not kept secure after each test was administered.

Publication of standardized tests is obviously a problem because the confidentiality of the tests is broken and the validation process cannot take place. Any questions publicized would thereafter need to be discarded, and the developers of the tests would have to create new questions at an additional expense.5 The court in Chicago Board of Education v. Substance, Inc. recognized the cost associated with creating these tests. Also, the court acknowledged that the tests are worthless if they cannot be reused.6

The first two cases that follow will show what served as precursors to Chicago Board of Education. The courts in these cases used the fair use factors to protect the copyrighted works for future use.

A. Preliminary Cases

Educational Testing Services v. Katzman7 involved infringement by defendant corporation of SAT tests created by the plaintiff. The defendant specialized in coaching students in taking the SAT. This case was one of the early cases to apply the four fair use factors.8 These factors include:

* the purpose of the use,

* the nature of the copyrighted work,

* the amount and substantiality of the portion of the work used, and

* the effect on the market.9

The court found in favor of the test-makers. Applying the four fair use factors, the court noted that the purpose of the use was commercial; the nature of the secure tests meant that any such use was destructive; the use of the questions was substantial; and the use of the questions rendered them forever useless to the plaintiff. …

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