National Copyright

2.11 Computer Software

Overview

Computer software is protected as a literary work under the Copyright Act. In general the educational institution's use of computer software will be governed by the licence agreement which accompanies the software.

It is important to note that:

the Statutory Print licence does not apply to computer software
the licence terms will override the defence of fair dealing and other statutory exceptions
the specific exceptions under the Copyright Act for computer programs do not apply to other types of digitised material such as CDs, CD-Roms, DVDs, MP3 files

In most cases, the extent of permitted use of a computer program will be dictated by its licence.

(a) Free Use exceptions

The Copyright Act contains a number of free use exceptions and other matters which allow copyright material to be used without the permission of the copyright owner. The free use exceptions relevant for educational institutions are set out below.

Fair dealing

The copying of multimedia products or work contained in multimedia products for fair dealing purposes is free and does not require the permission of the copyright owner. The relevant fair dealing exceptions are:

research or study
criticism or review
reporting the news

See 1.14: Defences and exceptions to infringement

(b) Statutory Exceptions

A number of specific exceptions apply to the reproduction and adaptation of computer software. If the educational institution or student owns a legitimate copy of computer software or has a licence from the copyright owner to use the software, then the following exceptions will apply.

Running the program for the purpose for which it is designed

Copyright in a computer program or any works incorporated in or associated with the program will not be infringed by running the program for the purpose for which it is designed.

This exception cannot be relied on if running the computer program is not permitted under the licence or by direction of the copyright owner.

For example:

the educational institution runs the program on more computers than the licence allows
second hand copies of computer software, use of which is limited to the original purchaser and not to be on-sold

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Back-up Copies

You are permitted to make a back-up copy for the purpose of

being used or stored in lieu of the original
enabling the owner to make a further reproduction if the original or the other reproduction is ‘lost, destroyed or rendered unusable’
normal back up copying of data for security purposes (this extends to all copyright material held on the computer's operating system)

This exception does not apply to the making of a copy from an infringing or unlicensed copy or if the program has been so designed that copies cannot be made without modifying the program.

Reverse engineering and interoperability

Educational institutions and students are permitted to reproduce computer software for the purpose of creating an interoperable program or article.

Correcting error and security testing purposes

Decompilation of programs for the purpose of testing errors and security testing is permitted

(c) Statutory exceptions and contract

None of the following exceptions may be overridden by contract:

the making of back up copies
reproduction or adaptation for interoperability
Decompilation for correcting errors and security testing purposes

This means you can rely on these exceptions even if the licence specifically prohibits these activities.

(d) Types of Licences

The purchaser of computer software obtains only limited rights to make use of that software. In this way, the acquisition of computer software differs from the acquisition of other educational materials. The purchaser obtains a licence to use the software under specific licence conditions that may be found in the licence agreement. The licence agreement might be set out on the packet containing the disc, attached to the manual or displayed on the screen. The conditions of the licence must be observed.

Copyright owners licence their software for different user situations, including:

a single computer licence
site licences which allow for multiple copies of disks to be made for use on computers within a single school or institution
network licences, which allow for the use of software on a computer network

If the conditions of the licence attached to a piece of computer software are unacceptable, the software should be returned to the supplier. To enhance user access to software programs, educational institutions should negotiate for improved licence conditions at the time of purchase .

(e) Practical re-negotiation tips

Schools may consider the following licence conditions as a basis for negotiation:

the number of machines on which it may be used, that is. single or multi user/s.
whether it may be used on a local area network
provision of remote access
the right to make hard copies of a search and the amount which may be copied
the purpose and use of the material
the right to electronically store a copy of any search output
the making of a copy of the software for archival purposes
whether a copy of the CD-Rom may be loaded onto hard disc, for example, some CDs allow the complete file to be downloaded onto a hard disc provided that the CD-Rom is kept on the site and not used simultaneously on another machine
whether the software and accompanying documentation can be transferred to another end user (under the terms of a licence, schools cannot sell software to another school, however, the licence can be transferred if the copyright owner agrees)
permission to schools to make copies of superseded versions of software at reasonable cost
the loan of software for use at home by teachers and students
where teachers own programs, whether they are permitted to use programs at school as well as home.

SEE FAQs [10]

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