The guidelines for classroom copying in not-for- profit educational institutions are explicitly limited to books and periodicals, and do not encompass other types of copyrighted works, including computer programs. Computer software is purchased under a specific license agreement. It is important to note here that licenses trump fair use. This includes “click through” or “click wrap” agreements commonly seen during software installation. It is very important that you familiarize yourself with the terms of your license agreement. University site license questions should be directed to CNU Information Technology Services. All site licenses are reviewed by University Council prior to purchase.
A. Use of Copyrighted Computer Programs (Software)
Copying not only entails duplicating software but includes transferring a program from one medium (CD, floppy, hard disk for example) or transmitting over a network. Unauthorized reproduction, distribution, or adaptation of computer programs is governed by the same rules as other end-uses and will be considered infringement unless it constitutes fair use under Section 107 of the Copyright Act or is exempted under Section 117 of the Copyright Act which is explained below.
1. Licensing
License agreements govern many of the activities that a user of a computer program may conduct. Even open or “free” software is usually acquired under some sort of license agreement. These agreements are contracts between the owner or vendor of the copyrighted work and the user of the work. University Site License agreements are reviewed by University Counsel prior to the purchase. Contracts are governed by state law.
The terms of the license agreement may broaden or narrow the rights that a user has under the Copyright Act. Such agreements usually specify restriction on the user's rights to copy the software, to access electronic information, and/or to download information. It may specify what constitutes legitimate uses of information. It is important that the user is familiar with the terms of the license agreement and complies.
2. Copying
A University department purchasing a program may adapt the program so it can be used on the office machines. This use qualifies for the Section 117 exception; the owner of a lawfully acquired copy of a computer program is permitted to make an adaptation of a computer program "as an essential step in the utilization of the computer program in conjunction with the machine and it is used in no other manner." As a part of software deployment services, the Information Technology Services may use this exception to distribute lawfully acquired software in accordance with the license agreement.
No department may obtain a single machine license for a program and then make it available via a network or any other means. Software intended for concurrent, campus-wide, and/or home use must be specifically licensed for that type of distribution.
3. Lending
Under Section 109(b)(2)(A) of the Copyright Act, a computer program may be loaned for non-profit purposes by nonprofit libraries. All copies that are loaned by a library must contain a warning of copyright in accordance with the requirements prescribed by the Register of Copyrights.
A library may lend a book with the supplemental software on a disk in the book pocket, so long as this is lent for a non-profit purpose and the library affixes to the book or the disk the required copyright warning.
4. Archiving copies
Under Section 117 of the Copyright Act, libraries and schools may lawfully make one copy under the following conditions: one copy is made, the original copy is stored. If the possession of the original ceases to be lawful, all copies must be destroyed. Only the number of copies purchased or licensed may be in use at any given time.
5. Areas of caution
a. Use of software may be restricted to a particular computer at a particular site. You should not assume that simultaneous use of a server copy of software is permitted.
b. Employees may not make copies of software licensed or owned by the University for their personal use except where explicitly allowed by the software vendor. Check with Information Technology Services for specifics on any given software package.
c. If the University supplies licensed software to students in the course of instruction in a classroom, then sufficient licenses must be held by the University. If the license states these licenses are to be retrieved in a specific way, most commonly a provided web site, then students must be routed to this site. Contact Information Technology Services if you are unsure of installation requirements for any given software.
d. Although freeware/shareware may be free to install and run, it is still subject to a license agreement. Agreements may specify permitted uses, time limits or other restrictions on the use of the software. Users are responsible for reading and complying with all terms of the agreement.
e. Open-source is not the same as freeware/shareware. However, these open software building communities have their own licensing rules. Members of the university community installing these resources and/or developing this software on university computers are responsible for familiarizing themselves with the appropriate license and keeping their installation/work in compliance.
More information can be found on the CNU Copyright Resources: Computer Software page.