June 2002

This information is for general guidance only; it is not legal advice.

First read:

• Educators webpage
• Using text, images & notated music for educational purposes (Part VB)

There are some provisions in the Copyright Act which allow educational institutions to use software in certain ways without infringing copyright. Generally, however, the way an educational institution can use software and CD-ROMs will be governed by the licence agreement which accompanies the software or CD-ROM.

This has important implications for the way educational institutions approach the way they purchase software and CD-ROMs, and for the procedures they put in place for using these types of resources. In this Part, therefore, we not only discuss the legal aspects of using software and CD-ROMs within educational institutions, but also what procedures educational institutions should consider adopting when purchasing and using software and CD-ROMs.

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Computer software	Part VB of the Copyright Act, which allows educational institutions to copy and communicate text, images and notated music, does not apply to computer programs.  However, there are other provisions in the Act which allow people, including educational institutions, to copy computer programs. In some cases, you can rely on these special provisions whether or not your software licence says you can.	Overview of special exceptions for use of computer software
What does the software licence say?	The ways that a can use a program will usually be outlined in an agreement between the purchaser and the program supplier. Alternatively, where a program is bought “off the shelf”, a licence agreement will often be included in the package. This agreement will usually determine such issues as whether an institution is permitted to network the program, who may use it and the number of computers upon which it may be run. Use outside the agreement may both infringe copyright and be a breach of contract.
CD-ROMs	Generally, you may not apply the computer program exceptions, discussed above, to CD-ROMs. An exception would be if the CD-ROM contains only computer programs and not other material such as text, moving and still images and recorded sounds. If you are in a library (including a library within an educational institution) you may make “articles” and “works” acquired in electronic form available online within the library premises, subject to certain limitations.  However, as the provision does not extend to AV material, and as CD-ROMs almost universally appear to have sound files, video clips or animations in them, this provision may have a very limited application. Generally, therefore, you will have to look to the licence agreement that accompanies the CD-ROM to work out what you can and cannot do with it and with the material on it. Note also that while the electronic use scheme introduced by the Digital Agenda Amendments allows educational institutions to print out, communicate and make electronic copies of text and graphic files on a CD-ROM, the terms or conditions in licence agreements will generally override the electronic use scheme in the Act. Therefore, even with the Digital Agenda amendments, 1icence agreements for the use of CD-ROMs will continue to be an important factor in determining how you can use a CD-ROM. If a licence agreement is silent on a particular point, you may apply the electronic use scheme to use textual material, images and notated music on the CD-ROM.	Making electronic material available online in the library
Procedures to follow when purchasing software and CD-ROMs	Your contractual obligations under a software or CD-ROM licence may be far wider than any obligations under copyright law, and may extend to the way third parties, such as students, use the item or the material on it. It is therefore important that procedures be put in place to ensure that the use of software and CD-ROMs stays within the terms or conditions agreed to when the item was acquired. The Business Software Alliance (BSAA), an organisation representing a number of major software companies, recommends that users of software prepare a “software register”. This records all software purchased, where it is located and the licence conditions attached to its use.  For example: may the item be networked, and if so, to how many machines, or on what premises? may it be multiple-installed, and if so, on how many machines? may it be loaned to staff and students (for example, for use at home or on laptops)? in the case of CD-ROMs, how much material may be copied or printed out, and for what purposes? does the licence have an expiry date? what are your entitlements to upgrades or to technical assistance? Users of various programs can then consult the register to ensure that they comply with the licence conditions, and the institution can use the register to ensure both that it is complying with licence conditions and that it is taking full advantage of the licence. You could adapt such a register to record information about CD-ROMs as well. You should also make sure that people who have access to the software are aware of their copyright obligations – for example, by putting the relevant notices about copyright obligations beside each relevant terminal,  and by notifying people about the register and where they can find out the information they need.	[link to copyright notice soon]

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