RE: Re: Permission needed to use student responses in test manual?

From: Roland Cole <cole[_at_]spi.org>
Date: Thu, 22 Jun 2006 18:26:18 -0400

I suggest "all answers become property of test giver" is bad policy because (a) a simple "shop rights" provision (use for educational purposes) would be enough, and (b) tying up all rights prohibits the students from revising themselves and is grabbing way more than needed in a situation where the test-takers have little bargaining power.

The concept of "contracts of adhesion" comes to mind, often popularly known as "an offer he could not refuse."

Roland J. Cole, J.D., Ph.D.
Director of Technology Policy
Sagamore Institute for Policy Research
340 West Michigan, Canal Suite B
INDIANAPOLIS IN 46202
317-727-8940; rollie[_at_]sipr.org; www.sipr.org

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of S. Martin Keleti Sent: Thursday, June 22, 2006 12:15 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: Permission needed to use student responses in test manual?

I believe that your instincts are good. What the students create in their test answers would appear protected by copyright, which goes into effect the moment the responses are written down. It's an analogous situation to letter-writing--the recipient has the ownership of the physical copy sent, but the author (sender) has the copyright in the literary work embodied in the letter. Answer booklets work the same way.

There might be a fair use argument, but you'd have to weigh and balance the legal factors. Among the factors possibliy in your favor are the nature of the responses (factual materials are likely to get less protection) and the effect on your use on market for the writings. Since you haven't told us much about the test, it's harder to know. There may be a case that there's a "thin" copyright since the ideas may be expressed in a limited number of ways (such as contest rules), but the fact that there's such variation in answers might cut against this. Your proposed use is not paraphrasing the responses, but literal, verbatim copying.

At the same time as your colleagues are making revisions to the test and to the test manual, someone perhaps should be making revisions to the forms used for enrolling in the tests; they might have language in them similar to the rules for essay contests (e.g., all submissions are property of the testing organization, who has the right to reprint them, etc.).

Why not just come up with "model" answers of your own? You and your colleagues are in the process of setting standards after all.

At 07:05 PM 6/20/2006, you wrote:

>My organization develops and distributes language tests (among many
>other things). My testing colleagues are currently making minor
>revisions to one of the tests and fairly significant changes to the
>test manual--that is, the manual that explains how to administer and
>score the test. In this manual, they want to include several writing
>samples from the tests of recent examinees to provide examples of
>writing at each possible score level. The specific tests from which
>they want to draw these samples were administered as part of a small
>study to confirm the validity of the slightly revised version of the test.
>
>Unfortunately, at the time the tests were administered, my colleagues
>did not request permission from the students (all of whom are adults)
>to use their test responses in the manual or in any other test-related
>materials that might be produced. So my question is, Do they need to
>try to track down the examinees whose writing samples they want to use
>to obtain permission? In the absence of any written agreement, do the
>examinees' responses belong to the examinees or to the test owner? The
>way the test works is that programs purchase the necessary testing
>materials, administer the tests, then send the answer booklets back to
>us for scoring. We then send them their students' scores, but we retain
>the physical test booklets.
>
>I am always reluctant to use someone else's writing without their
>knowledge or consent, but my testing colleagues don't understand my
>reluctance in this case. I am hoping that some of you may be more
>knowledgeable about copyright and standard practice in this area than
>we are and can offer some guidance.
>
>Thanks in advance for your help.
>
>Jeannie Rennie
>Senior Editor
>Center for Applied Linguistics
>4646 40th Street NW
>Washington, DC 20016-1859
>202-362-0700 ext. 501
>jeannie[_at_]cal.org
>******************************
>Visit us on the Web at <file://www.cal.org>www.cal.org
>

S. Martin Keleti
Cohen and Cohen
740 North La Brea Avenue
Los Angeles, CA 90038-3339
323.938.5000
323.936.6354 fax

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