University of New England

The purpose of this policy is to provide "fair use" guidelines for standard forms of media used in teaching and research, including printed materials, audio and video recordings, musical performance, visual artworks, computer software, and electronic information. Sources of the guidelines are cited, and frequently asked questions with examples of "fair use," relevant to particular media, are provided (p.27-35).

A. COMPUTER SOFTWARE

The University of New England negotiates site licenses with software vendors, whenever possible, for software products selected for extensive use, since this arrangement provides the University community with efficient access to computer programs that support the academic mission while assuring the copyright owner a fair royalty.

Software products not licensed to the University, but licensed to the user, may also be used. Copying, however, is strictly limited except for backup purposes. Whether the software is transferred from the original to a hard disk or to an archival diskette, the backup copy is not to be used as long as the other copy is functional. 10.

Libraries are permitted to lend software for personal use, but not for copying.

The Educational Uses of Information Technology Program (EUIT) of EDUCOM, a consortium of colleges and universities committed to the use and management of information technology in higher education, and the Information Technology Association of America (ITAA), an industry association, produced a guide and statement of principle regarding the use of software in an educational institution. The 1993 edition of the guide, in part, follows:

Using Software: A Guide to the Ethical and Legal Use of Software for Members of the Academic Community

Here Are Some Relevant Facts:

UNAUTHORIZED copying of software is illegal. Copyright law protects software authors and publishers, just as patent law protects inventors.

UNAUTHORIZED copying of software by individuals can harm the entire academic community. If unauthorized copying proliferates on a campus, the institution may incur legal liability. Also, the institution may find it more difficult to negotiate agreements that would make software more widely and less expensively available to members of the academic community.

UNAUTHORIZED copying and use of software deprives publishers and developers of a fair return for their work, increases prices, reduces the level of future support and enhancements, and can inhibit the development of new software products.

RESPECT for the intellectual work of others has traditionally been essential to the mission of colleges and universities. As members of the academic community, we value the free exchange of ideas. Just as we do not tolerate plagiarism, we do not condone the unauthorized copying of software, including programs, applications, data bases and code.

THEREFORE, we offer the following statement of principle about intellectual property and the legal and ethical use of software:

Respect for intellectual labor and creativity is vital to academic discourse and enterprise. This principle applies to works of all authors and publishers in all media. It encompasses respect for the right to acknowledgement, right to privacy, and right to determine the form, manner, and terms of publication and distribution.

Because electronic information is volatile and easily reproduced, respect for the work and personal expression of others is especially critical in computer environments. Violations of authorial integrity, including plagiarism, invasion of privacy, unauthorized access, and trade secret and copyright violations, may be grounds for sanctions against members of the academic community.

In terms of copyright, there are four broad classifications of software:

• Commercial
• Shareware
• Freeware
• Public Domain

The restrictions and limitations regarding each classification are different.

*COMMERCIAL

Commercial software represents the majority of software purchased from software publishers, commercial computer stores, etc. When you buy software, you are actually acquiring a license to use it, not own it. You acquire the license from the company that owns the copyright. The conditions and restrictions of the license agreement vary from program to program and should be read carefully. In general, commercial software licenses stipulate that (1) the software is covered by copyright, (2) although one archival copy of the software can be made, the backup copy cannot be used except when the original package fails or is destroyed, (3) modifications to the software are not allowed, (4) deprogram code is not allowed without the permission of the copyright holder, and (5) development of new works built upon the package (derivative works) is not allowed without the permission of the copyright holder.

*SHAREWARE

Shareware software is covered by copyright, as well. When you acquire software under a shareware arrangement, you are actually acquiring a license to use it, not own it. You acquire the license from the individual or company that owns the copyright. The conditions and restrictions of the license agreement vary from program to program and should be read carefully. The copyright holders for shareware allow purchasers to make and distribute copies of the software, but demand that if, after testing the software, you adopt general, shareware software licenses stipulate that (1) the software is covered by copyright, (2) although one archival copy of the software can be made, the backup copy cannot be used except when the original package fails or is destroyed (3) modifications to the software are not allowed, (4) de-compiling (i.e., reverse engineering) of the program code is not allowed without the permission of the copyright holder, and (5) development of new works built upon the package (derivative works) is not allowed without permission of the copyright holder. Selling software as shareware is a marketing decision, it does not change the legal requirements with respect to copyright. That means that you can make a single archival copy, but you are obliged to pay for all copies adopted for use.

*FREEWARE

Freeware also is covered by copyright and subject to the conditions defined by the holder of the copyright. The conditions for freeware are in direct opposition to normal copyright restrictions. In general, freeware software licenses stipulate that (1) the software is covered by copyright, (2) copies of the software can be made for both archival and distribution purposes but that distribution cannot be for profit, (3) modification to the software is allowed and encouraged, (4) de-compiling (i.e., reverse engineering) of the program code is allowed without the explicit permission of the copyright holder, and (5) development of new works built upon the package (derivative works) is allowed and encouraged with the condition that derivative works must also be designated as freeware. That means that you cannot take freeware, modify or extend it, and then sell it as commercial or shareware software.

*PUBLIC DOMAIN

Public domain software comes into being when the original copyright holder explicitly relinquishes all rights to the software. Since under current copyright law, all intellectual works (including software) are protected as soon as they are committed to a medium, for something to be public domain it must be clearly marked as such. Before March 1, 1989, it was assumed that intellectual works were not covered by copyright unless the copyright symbol ["c"] and declaration appeared on the work. With the U.S. this presumption has been reversed. Now all works assume copyright protection unless the public domain notification is stated. This means that for public domain software (1) copyright rights have been relinquished, (2) software copies can be made for both archival and distribution purposes with no restrictions as to distribution, (3) modifications to the software are allowed, (4) de-compiling (i.e., reverse engineering) of the program code is allowed, and (5) development of new works built upon the package (derivative works) is allowed without conditions on the distribution or use of the derivative work. 12.

The following suggestions may help users determine whether software is in the public domain or copyright protected and, if copyright protected, whether it must be licensed or is shareware or freeware. a) Assume all software is copyright protected even if it does not bear a copyright symbol. The absence of a copyright symbol does not give the user permission to copy the work. The only source for permission to copy copyrighted software is either a specific grant of that right pursuant to a license agreement or the express or implied (with regard to freeware) permission of the copyright owner. b) Maintain in a secure place any packaging materials that may contain the provisions of a license agreement between the user and the software copyright owner. Refer to these materials for information about what copying is permissible for that particular software. c) Check with the Director of Computer Services to determine which software is site or group licensed to the University and refer to those licenses for information about users' right to copy. d) Look at the programs' boot up screens, diskette outer surfaces, and program documentation to determine if information is available that indicates the copyright status of the software or a user's right to copy. 13.

B. ELECTRONIC INFORMATION, NETWORKS, THE INTERNET

Uses of computer technology, such as digitization, and communications technology, such as fiber optic cable, have had an enormous impact on the creation, reproduction and dissemination of copyright works. The merger of computer and communications technology into an integrated information technology has made possible the development of the National Information Infrastructure (NII), encompassing digital, interactive services now available, such as the Internet, as well as those contemplated for the future. The NII, generating unprecedented challenges and opportunities for the copyright marketplace, provides benefits to authors and consumers by reducing the time between the creation and dissemination of intellectual works. The electronic market, however, exposes works to a higher risk of piracy and other unauthorized uses. Any two-dimensional work can readily be "digitized" and stored and used in that medium. This dramatically increases the ease and speed with which a work can be reproduced, manipulated, altered, and delivered to the public.14.

The ease with which electronic information and images can be altered and distributed makes it difficult to protect intellectual property and to determine the originality or integrity of a work. Information posted on the Internet is not in the public domain. Once creative expression is committed to a tangible medium, copyright is automatically inherent in the work. Postings on the Internet are just as protected as published printed works. 15.

Pending legislation to amend the United States Copyright Law of 1976 to accommodate technological change may impact public access to information as well as the doctrine of fair use in Section 107.

Copyright is a dynamic force that will evolve with new technologies, new uses of materials, new demands, and new court rulings. University authors and users of information have a vested interest in participating in copyright policy-making by articulating the spirit of copyright law, the relationship of fair use to the academic mission, and the encouragement of creativity.16.

C. FILMS, AUDIOCASSETTES, VIDEOCASSETTES

1. PERFORMANCES: Playing a sound recording, audiocassette, or compact disc or showing a purchased or rented videocassette or film is considered a "performance" of a copyrighted work. These activities may be infringements of the copyright owner's exclusive rights if such performances are public. Section 101 of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code) states that a performance is public if it is in a public place or if it is in any place and a substantial number of persons outside of a normal circle of a family and its acquaintances is gathered there. 17.

Similarly a public performance of a radio broadcast of a musical composition by means of a live retransmission or a delayed audiocassette transmission is generally not permitted without permission from the copyright owner. Private performances are not an infringement.

Section 110, however, exempts certain public performances in the face-to-face teaching activities of a nonprofit educational institution:

Performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made. 18.

If a public performance does not qualify for exemption as a teaching activity of a nonprofit educational institution, written permission from the copyright owner must be requested and granted before performing a work.

1. FILMS AND VIDEOCASSETTES In-classroom performance of a copyrighted film or videocassette is permissible under the following conditions, as defined in the 1986 American Library Association's Model Policy: Library and Classroom Use of Copyrighted Videotapes and Computer Software:
1. the performance must be by instructors (including guest lecturers) or by pupils, and
2. the performance is in connection with face-to-face teaching activities, and
3. the entire audience is involved in the teaching activity, and
4. the entire audience is in the same room or same general area, and
5. the teaching activities are conducted by a non-profit educational institution, and
6. the performance takes place in a classroom or similar place devoted to instruction, such as a school library, gym, auditorium or workshop, and
7. the videotape [or film] is lawfully made; the person responsible had no reason to believe that the videotape [or film] was unlawfully made. 19.
The relationship between the film or videocassette and the course of instruction must be explicit. Films or videocassettes, even in a face-to-face classroom setting, may not be used for entertainment or recreation, whatever the work's intellectual content. 20.
2. COPYING Possession of an audiocassette, sound recording, film, or videocassette does not confer the right to copy the work. Exempt instances of copying music recordings for educational use are identified under MUSIC (p.14-15). Copying audiocassettes, sound recordings, films, or videocassettes under any other circumstances (including backup copies) requires written permission from the copyright owner.

Libraries are permitted to loan audiocassettes, sound recordings, films, and videocassettes (except off-air broadcast recordings) for personal use, but not for copying.

3. OFF-AIR RECORDING Fair use guidelines for the recording, retention, and use of television broadcast programs for educational purposes were established by a negotiating committee appointed by Congress in 1979. Representatives of educational organizations, copyright proprietors, and creative guilds and unions established the guidelines to provide standards for both owners and users of copyrighted television programs. The guidelines were published in the Congressional Record in 1981.

1. The guidelines were developed to apply only to off-air recording by nonprofit educational institutions.
2. A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable retransmission) and retained by a nonprofit educational institution for a period not to exceed the first forty-five (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 homes of students receiving formalized home instruction, during the first ten (10) co nsecutive school days in the forty-five (45) calendar day retention period. "School days" are school session days--not counting weekends, holidays, vacations, examination periods, or other schedule d interruptionday 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 rebroadcast.
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 such additional copy shall be subject to all provisions governing the original r 6) A fter the first ten (10) consecutive school days, off-air recordings may be used up to the end of the forty-five (45) calendar day retention period only for teacher evaluation purposes, i.e., to determine whether or not to inclucurriculum, and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.
6. 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 compilations.
7. All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.
8. Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines. 21.

1. COPYING Fair use reproduction of charts, graphs, diagrams, drawings, cartoons, and pictures from a book, periodical or newspaper is outlined in the Agreement on Guidelines for Classroom Copying in Not-For Profit Educational Institutions (p.18-20).

Whenever possible, the University of New England will either purchase slides and photographs from authorized sources or will borrow from institutions which offer licensing for single-copy reproduction. In either case, further copying would be an infringement of copyright.

If slides of copyrighted illustrations or images are needed for classroom purposes and 1) cannot be purchased or obtained in a timely fashion or 2) if reproduction would fail to meet the fair use Guidelines (see above), permission from the copyright owner would be required. 22.

2. DISPLAY Copyright ownership includes the exclusive rights to display as well as reproduce. Section 110 of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code) provides an exemption for display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, as long as the work was lawfully made and the display is integral to the course.23.