"Testing" the Copyright Clause: Copyright Protection for Educational and Psychological Tests

I. Introduction II. How Educational and Psychological Tests Are Constructed ... A. Overview ... B. Selection of Test Objectives ... C. Selection of Items ... D. Selection of Item Response Style ... E. Deciding Whether the Items Written Are "Good" ... F. Standardization of the Test ... G. Reliability and Validity ... H. Conclusions III. The Basis for Granting Copyright Protection to Educational and Psychological Tests ... A. Tests as Writings ... B. Tests as Original Works of Authorship IV. Infringement and the Scope of Copyright Protection ... A. Tests as Factual Works ... B. Tests as Discoveries ... C. The Complete Tests as Functional Works ... D. Individual Items and the Doctrine of Merger ... E. Conclusions: What Can a Second User Do? V. The Defense of Fair Use ... A. The Defendant's Use for Explanation or Teaching Purposes ... B. The Defendant's Use for Testing Purposes ... C. The Defendant's Use for Other Research Purposes VI. Conclusion