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Consequently, the distribution of these materials does not constitute the rendering of
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your specific and unique circumstances.
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simplest terms, what are the basic rules governing the copying of software for educational
There are two basic rules. First, when you purchase software, you may make one
copy for back-up purposes. Second, you are permitted to do what the licensing
agreement and copyright laws fair use rules
as Im a teacher using the software for educational purposes, doesnt fair use
permit me to copy virtually anything?
No. The fair use rules of
copyright law permit copyrighted works to be used for educational and research purposes
without the permission of or payment to the owners. However,
for fair use to apply, the use must be a permitted use (such as for educational purposes) and it must not significantly diminish the
commercial value of the work. Copying software
detracts from its commercial value.
about licensing agreements? What do they
Essentially, a licensing agreement is a contract that spells out what
the owner of the software is selling. And, you
can buy only what the seller is offering for sale. (Its
like renting a house. You cant make the
owner sell you the house. But, renting it
gives you certain rights to use it.) So, the short
answer is that you can do whatever the licensing agreement allows. The terms of licensing agreements vary from company
to company and depend on what you bought. Did
you pay for one copy to be used on one computer? Or,
did you buy a site license, network license, lab pack, or some other package which permits
installation and use on more than one computer?
Im using software in my courses and need it on multiple computers for my students?
Most software publishers today sell licenses that permit one copy of a software program to be installed on
multiple computers and/or on networks.
work at home. Can I install the same software
on my home computer and my school computer so I can use it in both places?
Only if the licensing agreement permits it to be installed on two
different computers. Otherwise, you need to
purchase two copies or remove it from one computer before installing and using it on the
and lend books. Why cant I borrow or
As long as the software is installed on your computer, lending your
disk to someone else to install it on another computer is the same as lending a book to
someone while keeping a photocopy of the book. You
can sell or give away software after it is
removed from your computer. However, some
licensing agreements prohibit this once a program upgrade is available. Read the licensing agreement for the upgrade to
determine whether you are permitted to sell or give away the old version.
about shareware and freeware?
Shareware and freeware are like commercial software in that they are
protected by copyright law and governed by the terms of their licensing agreements. Typically, shareware permits potential users to
test the software before paying for it. Freeware
doesnt require payment to anyone and in many cases the licensing agreement permits
users to modify and distribute the software as long as no fee is charged subsequent users. To learn the specific terms for a particular piece
of software, read the licensing agreement.
schools and colleges really get in trouble for software infringement?
Yes. In 1998, the Los
Angeles School District entered into a tentative settlement with software publishers
reported to be in the range of $300,000. Other
1998 settlements involved a Florida junior college ($135,000) and a Pennsylvania technical
institute ($102,500). While there are other cases
that settled under terms which didnt require any cash payments, it is not difficult
to imagine the damage inflicted to many professional reputations as a result of these
show videos in my classes without needing to obtain permission from the copyright holder?
Yes, as long as two criteria are met. First,
the video must have been lawfully acquired. Second,
the video must be shown for educational purposes (not for recreational or entertainment
cant show a video to my class as a reward for a job well done?
If you want to show your class a video for recreational or
entertainment purposes, you must obtain the permission of the copyright owner. If the video is for legitimate educational
purposes, you dont need permission, you simply need a legal copy of the video.
rent an educational video from my local video store and show that in my class?
Yes, renting a video is one way to lawfully acquire a copy.
about the for private home use only statement displayed with the opening
credits on many rental videos?
Such statements do not prohibit teachers from using videos in class
for legitimate educational purposes. Under the
general rules of copyright law, copyright owners have the exclusive right to publicly
perform and display their works. However,
these rights are exclusive onlythey are not absolute.
Congress specifically created an exception giving teachers the right to use
lawfully acquired videos (and other audiovisual works) for educational purposes. That is, teachers can use such videos and other
audiovisual works for educational purposes without obtaining permission from the copyright
owner. Most experts agree that the for
private home use only statements do not prevent teachers from exercising their
rights under the educational exception created by Congress. In contrast, a copyright
owners rights are violated if, for example, a performance or display is open to the
general public and an admission fee is charged.
borrow an educational video from a friend or from the library and show it in my class?
Yes, as long as the video is a legal copy and not a bootleg copy.
purchase a copy of an educational video and show it in my class?
Yes, as long as the video is a legal copy and not a bootleg copy.
videotape an educational program from TV and show it in my class?
Within certain limitations, yes. A
Congressional committee developed guidelines to address the extent to which educators are
permitted to copy television programs. In
short, teachers may copy programs for relevant teaching activities. However, the copy must be used no later than ten
school days after it was copied and the copy must be destroyed or erased no later than
forty-five days after it was copied. Copied
programs may be shown once in each class and may be repeated a second time to reinforce or
clarify relevant points. In addition, the copy must
contain the programs copyright notice.
else do the guidelines say?
The guidelines offer
further detail. The entire text is reproduced on
the following page.
schools been sued for illegally copying programs off television?
Yes. In a New York case,
the court found the copying to be extensive and some copies were kept for up to ten years. This violated the rules of copyright law and fair use. Encyclopedia
Britannica v. Crooks, 558 F.Supp. (WDNY 1983).
long as I follow the guidelines I can copy any television program?
No. Fair use doesnt permit copying that
undermines the market value of protected works. As
the Crooks decision pointed out, if a program is
available through a short term rental, even copying within the limits of the guidelines is
For Off-Air Recording Of Broadcast Programming For
guidelines were developed to apply only to off-air recording by non-profit educational
2. A broadcast program
may be recorded off-air simultaneously with broadcast transmission (including simultaneous
cable transmission) and retained by a non-profit educational institution for a period not
to exceed the first 45 consecutive calendar days after date of recording. Upon conclusion of such retention period, all
off-air recordings must be erased or destroyed immediately.
Broadcast programs are television programs transmitted by television
stations for reception by the general public without charge.
3. Off-air recordings
may be used once by individual teachers in the course of relevant teaching activities, and
repeated once only when instructional reinforcement is necessary, in classrooms and
similar places devoted to instruction within a single building, cluster or campus, as well
as in the home of students receiving formalized home instruction during the first 10
consecutive school days in the 45 day calendar day retention period. School days are school session daysnot
counting weekends, holidays, vacations, examination periods, or other scheduled
interruptionswithin the 45 calendar day retention period.
4. Off-air recordings
may be made only at the request of and used by individual teachers, and may not be
regularly recorded in anticipation of requests. No
broadcast program may be recorded off-air more than once at the request of the same
teacher, regardless of the number of times the program may be broadcast.
5. A limited number of
copies may be reproduced from each off-air recording to meet the legitimate needs of
teachers under these guidelines. Each
additional copy shall be subject to all provisions governing the original recording.
6. After the first 10
consecutive school days, off-air recordings may be used up to the end of the 45 calendar
day retention period only for teacher evaluation purposes, i.e. to determine whether or
not to include the broadcast program in the teaching curriculum, and may not be used in
the recording institution for student exhibition or any other non-evaluation purpose
7. Off-air recordings
need not be used in their entirety, but the recorded programs may not be altered from
their original content. Off-air recordings may not
be physically or electronically combined or merged to constitute teaching anthologies or
8. All copies of off-air
recordings must include the copyright notice on the broadcast program as recorded.
institutions are expected to establish appropriate control procedures to maintain the
integrity of these guidelines.
copyright law apply to the Internet?
Yes. Copyright law
applies to the expression of ideas (not to the ideas themselves). Materials posted to the Internet qualify as the
expression of ideas.
the materials I find on the Internet dont have a copyright notice? Doesnt that mean I can use them because
theyre not protected by copyright law?
Under old law, a copyright notice was required for copyright
protection. After March 1, 1989, this is no
longer true. Whether on the Internet or
elsewhere, copyright protection applies even though no notice is placed on the materials. Today, the correct assumption to make is that
materials are protected unless there is a statement explicitly giving up copyright
written materials covered by copyright law?
No. Facts and forms
are not eligible for copyright protection. And,
materials created by the federal government are not eligible for copyright protection. Consequently, anyone can use them for any purpose
without permission. (Note: Materials created by state governments are sometimes
protected and sometimes not. You must check
them for copyright information before using them.)
cant use materials from the Internet unless I get permission from the copyright
No. The fair use
exceptions to copyright law apply to the Internet. If
fair use applies, you dont need permission to use the materials.
fair use rules apply to the Internet?
The same way they apply to other materials. For example, to the extent fair use permits you to
use an article found in a journal, you can use an article found on the Internet. For more detail, take a look at The Copyright Crash
Course listed in Useful Web Sites.
I post student work to a class web site?
Yes. But, you should
first obtain permission. For K-12, you should
get permission from your students parent(s) or guardian(s). For college students, you can get permission from
them directly. Check to see if your school has a
standard form for you to use.
risks do I run by posting student work to a web site without first obtaining permission?
Some of the risks are legal and others are not. The legal risks include copyright infringement
(yes, students own the copyright to the works they create) and violation of federal
privacy laws (the Family Educational Rights and Privacy Act). Other risks include the possibility of upset or
irate parents, guardians, students, and administrators or allegations of plagiarism (most
likely on a college level).
Copyright infringement occurs when you improperly use a
copyrighted work. For example, you needed
permission and didnt get it or your use exceeded the limits of fair use.
can be sued for copyright infringement?
its more likely that your school or university will be sued. In addition, even if you are sued personally, many
employers will reimburse you as long as the infringement was work-related and you complied
with your institutions policies.
a statute of limitations on copyright infringement?
Yes3 years for civil violations of copyright law and 5 years for criminal violations.
what do I do if Ive violated copyright law?
First, stop doing the things that violate copyright law. Second, if you want to continue to use the
materials, obtain the appropriate permission or acquire a lawful copy of the software or
How can I find out if
someone is infringing my copyright?
If its not on the Internet, its not easy. You may
stumble across it or someone may report it to you. On the Internet, you can do a search of
your name or a string of words unique to your work.
AT&T Learning Network
A good source of links to numerous sites offering guidelines for computer use
policies. From the homepage, go to the Resources for Educators and click on Acceptable Use
Copyright & Fair Use
Stanford Universitys site provides comprehensive information on current
developments in the law.
Provided by the Consortium for Educational Technology in University Systems (CETUS),
this site analyzes various scenarios under fair use rules. The scenarios involve
electronic reserves, multimedia productions, the Internet, slide collections, and adapting
material for disabled students.
This CETUS site offers basic information about obtaining permission to use copyrighted
work when the fair use rules dont apply. It includes a sample letter for such
The Copyright Crash Course
This site provides a great overview with a minimum of legal jargon. From the
homepage,click on Copyright.
10 Big Myths About Copyright Explained
Directed at Internet issues, this article explains common misconceptions. From the
homepage, click on Copyright Myths.
ABOUT THE AUTHOR
Enghagen is an attorney and Associate Professor at the University of Massachusetts at
Amherst. Professor Enghagen began teaching
intellectual property as part of a distance education program over fifteen years ago. This interest in intellectual property issues grew to
include the myriad of related concerns confronting educators in both traditional and
distance education classrooms. Professor Enghagen
offers workshops to both K-12 and higher education audiences on copyright and fair use law
for educators. In addition, her publications include two books Fair Use Guidelines for Educators and Technology and Higher Education (edited), and an
article entitled Copyright Law and Fair Use: Why Ignorance Is Not BlissA Case For Using
The author can be reached at:
Linda K. Enghagen, J.D.
Flint Lab 203D
University of Massachusetts Amherst, MA 01003
P.O. Box 828
Northampton, MA 01061-0828