Law Journal Backs Exam Disclosure

University Testing

Countering the arguments of testing industry attorneys, an article in the Summer 1996 Rutgers Law Review concludes that New York State s law requiring manufacturers of college admissions exams to make copies of their tests publicly available is consistent with U.S. copyright requirements. Though legally binding only in New York, these truth-in-testing provisions for exams such as the SAT, ACT, GRE and LSAT have been applied across the nation.


Copyright Fair Use of Standardized Tests by Prof. Robert A. Kreiss, Director of the Program in Law and Technology at the University of Dayton Law School, argues that the Primary Objective of copyright in the U.S. Constitution is not the economic reward for the labor of authors but the public benefit derived from the dissemination of copyrighted works.


Determining the legality of truth-in-testing, then, hinges on a quid pro quo, balancing the rights of exclusivity granted an exam s producers with access granted to the public. From this perspective, Prof. Kreiss concludes that the disclosure requirement easily constitutes fair use.


The article is particularly significant because a lawsuit by the College Board, Educational Testing Service and other test-makers charging that the fifteen-year-old state statute violates federal law (see Examiner, Spring 1995) is pending in federal court, where one judge agreed with some of the testmakers claims (see Examiner, Summer 1995).


Despite the lawsuit, New York s legislature recently passed and Governor George Pataki signed a new provision applying some truth-in-testing provisions to exams administered by computer (see Examiner, Fall 1996). Professor Kreiss argument should be valuable for those defending the state law and working for its extension to other exams.