James Grimmelmann, Associate Professor at New York Law School, has written on the takedown of an open-access cognitive screening test by the copyright holders of the Mini Mental State test.
He says "any copyright claim here is legally weak and morally indefensible".
His piece is worth reading in full not only because he sets out clearly why the legal challenge to the open-access Sweet 16 test is highly dubious but why, at least in the US jurisdiction, copyrighting any test form is simply not possible.
What about the forms? You might object that PAR isn't trying to stop doctors from using the MMSE, only to stop others from selling the forms that go with it. Well, it turns out the Supreme Court rejected that argument, too. In Baker v. Selden, the defendant was selling a book of blank forms to be used with the plaintiff's accounting system. The Court held that this, too, was permissible. Yes, the Court said, the plaintiff could copyright his book explaining the system of accounting, but that copyright would not extend to the forms themselves…
The same goes for blank MMSE forms. Those are "necessary incidents" to administering the MMSE, at least if you want to write down the answers in a standardized way. Indeed, to the extent that the forms are designed to total up a patient's score, a Copyright Office regulation says flatly that they're uncopyrightable…
In other words, not only is the copyright bullying of other tests likely to be way out of bounds, but this also extends to any copyright claim on the original test form itself.
Link to Grimmelmann on MMSE copyright bullying (via @deevybee)
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