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[mappel]

Hi, I have a website that helps people prepare for a licensing test.   Are the old exam questions covered by copyright law?  Can I put the old exam questions on my website without breaking the law?  Thanks, mja.

[Smokin]

You can not copyright facts or information, but you can copyright a collection or arrangement of whatever. I would guess that most tests and questions do have copyright protection, however anything produced by our government is in the public domain. (I'm sure there are exceptions).

[mappel]

OK, that is interesting.  So take something like driver's licence examination questions.  These wouldn't be copyrighted because the government made them, right?

[Smokin]

Correct, in theory.......

I pause only because I read at some point an interesting article about a guy who tried to post the laws and/or codes on some website and was given a cease and desist letter. Plus its not uncommon for government agencies to ignore the fact that public domain exists and pursue legal actions.

I honestly don't remember the details in the article and that matters alot, but from what I remember the city contracted with a publishing company to  create code books or law books and the article seemed to suggest that even copying the laws produced by our governments to make them accessible to the public was infringing which seems absurd and unenforceable to me. The collection and arrangement of the info is another thing completely.

Examples of government agencies ignoring public domain include the LAPD who trademarked and copyright their shield and logos and "LAPD" so they can control who can use them especially in films. The LADP has one department dedicated to reading scripts and deciding whether or not to allow a production company permission to use their logos. Other law enforment agencies have followed that trend.

I looked for the article and found this: http://www.jlconline.com/jlcupdate/2003/0312/1.html

[mappel]

So if I would put up some questions prepared by the government, and if they had a problem with it, I could just take them down.  Or I could not take them down depending on how I feel about it at the time.  But I probably wont get in any trouble unless they first ask me to take them down and i don't, right?  So I will get the chance to take them down before they sue me?

[Smokin]

But I probably wont get in any trouble unless they first ask me to take them down and i don't, right?  So I will get the chance to take them down before they sue me?

You can get sued for anything, baseless or not. You may or may not get a chance to take them down first before legal action is taken. If legal action is taken, then you can point out that the info is in public domain, etc. I would personally call the agency and ask if the info is in public domain or not and if you can copy it. At least you can get the skinny on the material and if some entity is trying to control that content or not.

[mappel]

OK, I understand, thank you.

So I understand that questions by groups like ACT and SAT are protected by copyright.  But  I also see their old test questions are available all over the internet and are included in a lot of different exam prep software.  I find it hard to believe that everyone actually has a license to use these questions, so is there a chance that they have released them to the public domain?

[Isaac]

OK, that is interesting.  So take something like driver's licence examination questions.  These wouldn't be copyrighted because the government made them, right?

Not correct.  Only works for hire created by federal government employees are ineligible for copyright protection.  The federal government can hold the copyrights assigned to it by contractors.

There are not such restrictions on state governments.   State governments can hold the copyrights on the works created by state employees.  The driver's license test was certainly created by either a state agency or a contractor hired by a state agency.

With regards to state codes, perhaps Smokin' is referring to Veeck v. Southern Building Code.
 
That case is based on a completely different issue.  Namely, whether a private building code adopted as state law can be copyrighted.  Most state government works don't involve the issues covered in Veeck.

State governments are also allowed to own trademarks and to generate revenue by licensing those marks.

[Isaac]

So I understand that questions by groups like ACT and SAT are protected by copyright.  But  I also see their old test questions are available all over the internet and are included in a lot of different exam prep software.  I find it hard to believe that everyone actually has a license to use these questions, so is there a chance that they have released them to the public domain?

Perhaps the people who make exam prep software get permission to use old test questions. 

Old ACT and SAT tests are available for a fee from testing services.  I don't think you can reach any conclusions based on the fact that people have posted old test questions on the internet.

As an example PMBR was sued and found to be infringing the copyright on MBE questions.

[mappel]

Ok, I understand from Isaac that maybe a state government has a copyright in the exam questions.  But let me ask you this - if they can't have a copyright on "facts," and the facts are that "these are the questions on the exam," how can that be protected?  Or if the fact is that "these are the questions that were on the 2006 exam?"  I see that my argument is maybe a little silly, but I don't think so, because they make tests, and people have to pass those tests, so how can they use copyright to stop someone else from talking about what's on those tests?  It just sounds unfair that they should be able to make money from people taking the test and also make money from people buying old test questions.

[Isaac]

I see that my argument is maybe a little silly, but I don't think so, because they make tests, and people have to pass those tests, so how can they use copyright to stop someone else from talking about what's on those tests?  It just sounds unfair that they should be able to make money from people taking the test and also make money from people buying old test questions.

The answers to the questions on your state's driving test are taken essentially verbatim from a relatively thin book you get for free from the DMV.

[artchain]

Ok, I understand from Isaac that maybe a state government has a copyright in the exam questions.  But let me ask you this - if they can't have a copyright on "facts," and the facts are that "these are the questions on the exam," how can that be protected?  Or if the fact is that "these are the questions that were on the 2006 exam?"  I see that my argument is maybe a little silly, but I don't think so, because they make tests, and people have to pass those tests, so how can they use copyright to stop someone else from talking about what's on those tests?

This is in fact a silly argument.  Reduce it to it's most absurd...  if what you say were true, I could simply say, "It is a fact that this is the complete text of every book on the current New York Times best sellers list..." and then proceed to copy those works.

Copyrights protect creative works, and a statement of facts is not considered a creative work. 

It just sounds unfair that they should be able to make money from people taking the test and also make money from people buying old test questions.

The people who create tests have just as much right to protect and profit from their work as any other creative writer.

[mappel]

I see what you're saying, artchain, but I still think there's a difference.  Maybe I am just saying it wrong.  For instance, take this question:

Water can safely be used on which of these fires?
A Chemical.
B Gasoline.
C Neither of the above.

If they ask this question every time they administer the test, and if they're testing the knowledge (fact) that you can't use water on either a chemical or gasoline fire, then wouldn't their copyright prevent anyone else from even discussing the question?  If someone told me "write a question that tests whether a person knows they can't safely use water on a chemical or gasoline fire, and offer three answer choices," this question is exactly what I would come up with.  If that wording is the most logical way to test a fact, then why should they get copyright protection for it?

[Isaac]

If someone told me "write a question that tests whether a person knows they can't safely use water on a chemical or gasoline fire, and offer three answer choices," this question is exactly what I would come up with.  If that wording is the most logical way to test a fact, then why should they get copyright protection for it?

This is probably your best argument so far.

The choice of which wrong answers to put in is a creative choice as is the number of choices and the order in which the choices are listed.  For many questions, the wording of the call of the question is also creative.  Further there is more than one way to test the 'don't use water' concept. 

There very well may be some questions on the test that do not have the creativity required to support copyright protection.  But it is unlikey that the whole test consists of questions like that.

Also the collection of questions on a given test is a creative choice.  Even if you paraphrase every question you may still infringe expression based on the test as a whole. 

[mappel]

It sounds like my best bet is to rewrite the test questions myself, to be safe.  And to create some of my own original test questions.