Posting of test questions online: Both ill-advised & illegal

Posting of test questions online: Both ill-advised & illegal

By Pamela Becker
August 2, 2021


The ubiquitous nature of the internet has resulted in an uptick in the posting of psychological and educational assessment questions online.

Some of these sites have good intentions: They want to help individuals, parents or students understand (and in some cases prepare) for upcoming testing sessions. And they believe they are helping when they post the questions (or test items) on a website or app. But the copying and posting of published test items (and in some cases the answers) is not just against the law. It threatens the validity of the results for tests used in a secure setting.

As psychologists and test publishers, we are obligated to do all we can to prevent these occurrences, and to contest them when brought to our attention.

Prevention

Prevention of the occurrences of intellectual property infringement many times begins with the psychologist who is administering the assessment.

According to the APA Ethical Principles and Code of Conduct (2010), psychologists must “make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code (p. 13).” This means not sharing materials outside of the testing session, as well as keeping materials in a secure location.

Sharing items and/or answers with an individual after testing, or with the parents while explaining test results, is of course permissible. But this sharing must not extend to allowing that individual or parent to leave a session with a copy of the test items or answers.

Psychologists are warned that replicating and including test items in academic and scientific publications or presentations could be a violation. Sample items can be provided by a test publisher or items that have previously appeared in research studies could be used as examples instead – all so that actual content is not exposed.

Test publishers also bear some responsibility to prevent test item release. Thus they go to great lengths to explain the terms and conditions for purchasing tests to psychologists, including statements pointing out that, “the copying, duplication, distribution or other use of test materials without specific written permission is not allowed.” Those terms and conditions note that any such action constitutes copyright infringement. Publishers include these notices on websites and in print and online materials

Legal recourse

Unfortunately, preventative measures are sometimes not enough. In cases where test items are persistently uploaded and shared, legal recourse may be the only remedy.
A test publisher typically will approach the website or app owner and alert them to a copyright violation; sometimes people are not aware that copying and posting materials that belong to publishers is a problem. Most of the time this resolves the matter.

But if this outreach does not result in the assessment questions being deleted promptly, publishers may have no choice but to take legal action.

As a general matter, under U.S. copyright law, infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. Posting items and/or answers online is a public display of the questions and is thus illegal without permission from the publisher.

The penalties for copyright infringement can be costly, especially if the psychologist ignores the publisher’s notice. The “infringer” may be ordered to pay statutory and/or punitive damages as well as all attorney fees and court costs.

Increased access to information and transparency concerning psychological and educational assessments are positive steps towards helping individuals/students and parents understand testing and its utility. But with this openness comes responsibility – on the part of the psychologist, the test taker and test publisher.

Working together, we can keep our test items and answers secure, and ensure that assessments continue to be a valid and reliable tool for psychologists.

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Pamela Becker has her advanced degree in psychology from the University of Notre Dame and has worked in test publishing for more than 35 years. She is currently on the group executive board at Hogrefe Publishing and is secretary of the Association of Test Publishers, Security Committee. Her email is: pamela.becker@hogrefe.com

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