PRP’s Position Regarding the Release and/or Photocopying of Test Materials
This document establishes the position of Professional
Resource Exchange, Inc./Professional Resource Press (PRP) relative to the release
and/or photocopying of any proprietary PRP test materials. This position paper is also intended to extend to
situations where it is
contemplated that test materials may be videotaped, audiotaped, or
utilized or translated into any
form of digital media.
Topics covered include trade secrets
and copyright (including
“fair use”), the Family Education Rights
and Privacy Act (FERPA), ethical
PRP views the copying of its test materials without specific written permission from us as copyright infringement. Intentional or inadvertent disclosure of a test threatens the ongoing validity of the test results, the future utility of the test, and therefore, ultimately, the commercial value of the product. Measures to protect the validity of valuable testing instruments include establishing policies for use of copyrighted materials, monitoring use of copyrighted materials, having written guidelines for the process of parental access to test results, and emphasizing the importance of adherence to copyright laws.
PRP considers its tests and test materials to be trade secrets. Test questions
and answers, profile forms, manuals, stimulus materials, and other items accompanying the test are confidential. Assessment
instruments are only sold to qualified individuals who are obligated by professional ethical
standards to protect
the integrity of the materials by maintaining the confidentiality of the questions and answers. The PRP Customer Qualification Form must be completed by all purchasers prior to purchasing
assessment products and related materials. The Qualification Form requires that
each purchaser show that he/she is appropriately qualified to buy test
materials and that ethical rules of
test use and interpretation will be followed.
PRP believes that the
copying of tests (including but not limited to audio- or videotaping during test administration or
transmission of test information via another medium) is a copyright infringement. In our
view, such copying does not fall under the “fair use” exception of copyright law, which
is addressed in Section 107 of the copyright law. That section
of copyright law identifies four principal factors that should be considered in determining whether
unauthorized copying of copyrighted material is a “fair use.”
These factors are:
(3) the amount of the copyrighted work which is used; and
(4) the effect of the use in a potential market for the copyrighted work
Although the disclosure of copies of test materials might, in certain cases,
fall on the"fair use" side of point (1), PRP believes that it almost certainly
does not fall within the uses
described in the other factors,
particularly points (2) and (4).
The Family Education Rights and Privacy
Act (FERPA) gives parents access
to their children’s test results.
Specifically, FERPA establishes the right of parents
“to inspect and review the education records of their children” [20 U.S.C.
§1232G(a)(1)(A)]. However, there
is nothing in the statute
that requires the release of copies of test questions or protocols. Rather, the law simply requires that schools have policies and procedures that allow parents to review their
children’s records within a
reasonable time after a request is made. The
regulations define “the right to inspect and review education records” as including:
(2) the right to obtain copies of the records from the [school] where failure of the [school] to provide the copies would effectively prevent a parent or eligible student from exercising the right to inspect and review the education records” [34 C.F.R. § 99.11(b)].
Even though the language
does provide for copies of the records, there is nothing to suggest that copies
of the test items and protocols are required. Rather, the school has an obligation to provide
copies of test results, but only in circumstances where other arrangements cannot be made to provide parent access to the records.
If a parent requests
an inspection of a child’s record, and the school
agrees to review the content
of the child’s test record
with the parent, it is
unlikely that a court would find that the parent’s
right to review educational records had been
denied. As part of school practice related to discussion of a child’s test results, PRP also recommends that the school
have specific guidelines about how
to disclose the purpose of the test.
PRP encourages professionals to review
test results with parents and, where
necessary, to review responses to individual
items. In some cases, this may
involve showing a test protocol or answer contained in test
booklets to parents
to aid in the discussion. However, PRP strongly opposes the release
of copies of protocols. The tests are valuable assessment instruments and are widely used throughout
the educational and psychological testing arena.
Breach of test security could threaten the validity of the tests
and, therefore, their value
as a measurement tool. However,
school psychologists in
California should be aware that a federal court ruling in 2005
[Newport-Mesa Unified Sch. Dist. v. State of California Dept. of Educ., 43 IDELR 161 (C.D. Cal. 2005)] supported the right of parents to receive a copy of test items and protocols, and schools must comply
with such requests when they
occur. Schools (in California and elsewhere) can do much to ensure that a parent understands the assessment process,
including the nature and the
limitations of the test. Schools can also emphasize that
disclosure of test items
could compromise future test administration. At the very least, if school legal
counsel recommends that the school release copies of any test
materials, the school should obtain a confidentiality agreement signed by
The original dissemination of PRP test materials is restricted to individuals with a professional background in psychology or a closely-related field, and only individuals with appropriate training in psychological assessment should interpret the tests. Under the American Psychological Association Standards for Educational and Psychological Testing, psychologists have an ethical duty to protect the integrity of tests by maintaining the confidentiality of the questions and answers to the tests. PRP also believes that it is inappropriate for individuals to re-sell test materials on Web sites such as eBay.com or Amazon.com unless the seller assesses the educational and professional background of the party purchasing the material(s). Psychologists and test administrators must also consider the conditions under which tests are administered. It is the professional’s responsibility to determine if testing conditions are appropriate for obtaining valid test scores. In summary, a significant investment has been made in developing and “norming” (compiling statistical data regarding results) the tests. Therefore, revealing test items to the public compromises the value of such tests and may interfere with PRP’s business practices.
PRP values the
swift progress of legal proceedings; however, we are
unwilling to threaten the security
and integrity of our test
instruments by consenting to the
release of copyrighted and confidential material to those
not professionally qualified
to obtain them. When litigation involving a psychologist reaches the point that a court is contemplating the release of proprietary test materials to non-professionals such as counsel, we ask that the court issue a protective order prohibiting parties from making
copies of the materials; requiring
that the materials be returned to the professional at the conclusion of the proceedings; and
requiring that the materials not be publicly
available as part of the record
of the case, whether this is done by sealing part of the record or by not including the materials in
the record at all.
if testimony reveals content of the items
or confidential test data, PRP recommends that the court seal the
disclosure, and not include the disclosures within the court record.
Pleadings and other court filings
should not, unless absolutely necessary, make specific reference to the content of or
responses to any item, and any portion of any document that does
so should be sealed. Finally, we request that the judge’s
opinion, including both findings
of fact and conclusions of law, not include descriptions or quotations of the items
or responses. PRP believes
that this is the minimum
requirement to protect
our copyright, as well as the security, integrity, and
validity of the test.
Please feel free to use this policy statement along with the company’s name in your materials. We appreciate your concerns with regard to this issue. Similar materials are also available from Psychological Assessment Resources (PAR), NCS Pearson (Pearson), Western Psychological Services (WPS), Harcourt Assessment, Inc. (Harcourt), and other test publishers; major portions of PRP's material were adapted from a PAR publication.
If you have other questions, please contact PRP at (941) 343-9601 and ask for our president or one of our executives.