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This document is based on one prepared as the basis for a joint policy on software copyright and piracy for all Australian universities. It was commissioned by the Australian Vice-Chancellors' Committee (AVCC) and the Australian University Computing Directors' Committee (AUCDC).
The first thing to note is that there are certain legal obligations that any user of software must take note of. These are copyright law and the vendor's licence terms. These are dealt with separately.
The copyright laws of Australia cover software.
Basically, the position is that any computer program written by any person in almost any country is automatically copyrighted, the copyright residing with the author, in the absence of any agreement to the contrary. It is not necessary to register this software, or even to assert that it is copyrighted. Copyright protection means that no unauthorised copies of the program may be made, and no unauthorised adaptations or translations of it may be made. There is a specific exception from this general bar to copying, to allow a person who has a legitimate right to use the software to make one backup copy, as long as the licence terms don't contradict that.
As a general rule, you may not copy ANY software that is not your own, except to make a backup copy.
Copyright protection does not prevent anyone who has obtained a piece of software from USING it, only from COPYING it (though they may not be allowed to make backup copies). The normal way in which you obtain a piece of software is to purchase, borrow or be given a copy by someone authorised to provide you with it (ultimately, the copyright holder). Other less legal ways are by theft or by acquiring a copy in a country which does not observe the Universal Copyright Convention or the Berne Convention. The copyright law itself does not prohibit theft (there are other laws for that!); it only prevents copying.
Basically, since it is the same copyright law that applies to other intellectual property (such as books, music and paintings), the same restrictions apply. The fact that it is so much easier to make a copy of a piece of software than, say, a text book, does not make it any more permissable.
Afford the same protections to computer software as to other intellectual property, such as books, music or paintings.
Indeed, due to the fact that it is so much easier to make copies of software, greater care must be taken by a person holding a copy of a piece of software not to accidentally copy it (eg when you make a copy of a whole disk for your friends, be careful that there is not a piece of copyright software on it).
Because software is easy to copy, take extra care not to allow inadvertent copying.
It is permissable to lend software (in the same way that you can lend a book). But you must not keep a copy to use yourself.
Note especially that, as for written material, every piece of software you come across is copyrighted. Unless you have been given legitimate and explicit permission, you may not make a copy of any software (other than for backup purposes). Of course, if you wrote the software yourself, you own the copyright, and can make and give away copies freely. You can also give or sell your copyright in that software to someone else. Once you have done this, you must treat the software like software from any other source.
If you created the software, then you can copy it freely. If the software was created at your university, then the university can make as many copies as it likes for its own use. The University of Western Australia has an Intellectual Property Policy which sets out what can be done with software created by its employees. You will need to check that policy is before assuming you can copy software created elsewhere on campus.
Frequently, an employer requires all his employees to sign over the copyright of all software they may write in the course of their employment by him. This is true at the University of Western Australia.
Your employer owns the copyright in any software you may write in the course of your employment.
The University has set out its policy on ownership of software that its employees have created in the Intellectual Property Policy.
The same conditions on adaptations, translations, etc apply to software as to other copyrighted material: you may not do these things. This includes converting into ROM, and even includes compiling, assembling or other necessary transformations required in order to use some kinds of software (this is where licences come to the rescue).
You may not adapt or translate a program, eg convert to another language, or even compile or assemble it, without the copyright owner's permission.
If a program is acquired by your department, then the copyright requirements must still be observed. As an employee of the University, both you (as the person arranging the purchase) and the University could be held liable in the event of an infringement. It is wise to appoint someone to be the custodian of the software, through whom all use, copying, etc is arranged. This will help to avoid the situation where 2 copies of a program come into use simultaneously (which is normally an infringement of copyright). Original copies should be clearly labelled and stored in a secure place; if you are not careful with software in your care, you could be found liable in the event that copies have been made.
Ensure original copies of programs are properly identified and stored in a secure place.
Appoint one person to be responsible for each piece of software purchased by your department.
If you purchase a piece of software on floppy disk, and then copy it to the hard disk of your computer, this is not normally an infringement of copyright. Of course, you must not use the original copy simultaneously, say, on another computer. Treat the original as the backup copy; it is normal practice, anyway, to use the copy in regular use, with the original constituting the backup. Be sure to mark the original to indicate that it has been copied to a hard disk, so that others do not also make copies.
Clearly label software “copied to hard disk” in order to prevent additional copies from being made; do not use the original copy.
If a copy of a program is made to a hard disk which is part of a network, then normally only one processor linked to that network may use the program at a time (and there may be other constraints imposed by the licence - see on). If there is any possibility that more than one person may be using the program at a time (eg students in a Lab, or colleagues on your departmental network), then you must ensure that you have bought as many copies as there will EVER BE users. Of course, you may be able to arrange a suitable multi-copy or network licence.
Be sure to buy as many licences as there will ever be simultaneous users of a program, especially if the software is installed on a network.
The penalties for infringement of copyright can be quite severe. It is both a civil and a criminal affair. So the copyright holder can sue you privately to recover (at least) the cost of purchasing the extra copies you are using. And the police can, on their own initiative, arrest you if they have reason to believe you have infringed copyright. The criminal penalties include heavy fines for first convictions, with even heavier fines plus 6 months' imprisonment for subsequent convictions.
It may be very important to ensure that you have evidence that you have a legitimate licence to every piece of software in your computer or in computers under your control. Otherwise you may find it very hard to defend a charge that you have illegally copied software. So be sure to keep the original disks and software licences (if they exist), and keep them in a secure place. Check your disks periodically to ensure that no illegal software has been copied to them. To claim that you didn't know how it got there may not be an adequate defence if a raid reveals such illegal software on your disks.
Ensure that original disks are clearly labelled and kept in a secure place.
Make periodic checks of your disks to ensure no illegal copies of software have been placed there.
Employers (eg the University) can also be held liable if there is a breach of copyright, if they have not taken adequate precautions to ensure their employees are made aware of the requirements of the law, and that appropriate procedures have been put into place to facilitate observance of the law's requirements. Apart from the above civil and criminal actions, you would also be liable for disciplinary action by the University.
Ensure that you, as a University employee, are aware of the University's procedures in this matter.
The University should promulgate policy on the matter of software copyright, and take all reasonable steps to ensure that its employees carry out the requirements of the law.
In the same way that the University has a duty to inform you of your obligations as an employee, so do you in regard to students under your control. You must take steps to ensure that they become aware of the rules that must be laid down for use of the University's computers and software. In addition to civil and criminal actions, students would also be liable for disciplinary action by the University.
Ensure that students are made aware of the rules regarding use of the University's hardware and software. Notices should be displayed in student laboratories, and it may be advisable to insist that students sign a document agreeing to abide by these rules before being allowed access.
Sometimes, academics have been heard to offer several “defences” for using illegally copies software. These include the following:
I only want to use it for teaching purposes, and that is surely acceptable; I only want to demonstrate the software; I only want to test or evaluate the software, after which I may well buy it; the prices charged by the software vendors are so unreasonably expensive (especially since it costs virtually nothing to make a copy), that I feel justified in using this bootleg copy; the licence terms required by the vendor are too draconian, and an offence to “natural justice”; I was given the software, or I don't know where it came from; it's too inconvenient to work out which programs I need a licence for and which I can use without fear; everyone copies software - it's accepted industry practice; educational institutions are very hard up, and we couldn't possibly afford proper licences for all the software we need. None of these excuses is a defence against liability or prosecution. For example, it may well be true that educational institutions cannot afford to pay standard commercial licences, but that in no way gives them the right to make additional copies. And it may well be true that the vendor may stand to gain substantial additional sales if he allows you to examine his software prior to making a purchase, or to teach it to your students, but that is up to you to negotiate with the vendor.
Do not be guided by what you consider “fair” in relation to use and copying of software; the only relevant consideration is what the Law actually says.
Good quality software is expensive to create (like most intellectual property), and the owner is entitled to recompense for his efforts. Especially in a university, respect for intellectual property is a fundamental consideration, and software should not be plagiarised either.
The author of a piece of software is as entitled to remuneration for his efforts as is the author of a book.
If someone uses your computer or one of the University's computers to copy software illegally, it is just possible that you or the University could be sued for acting as an accessory. Of course, it may be a defence that you were totally unaware of and opposed to such copying; nevertheless, to make suitable computers freely available may be construed as being negligent or as facilitating the infringement. Proper precautions should therefore be taken to make it quite clear that such use of the University's computers will not be tolerated.
Issue warnings to all potential users of University computers that their use for illegal copying is prohibited. Have students sign a declaration that they understand this before allowing access to University computers.
It is important to remember that software is in fact licensed to users, not sold. When you “buy a program”, you are doing no more than acquiring the right to use that program. Therefore, you only own the disk and not the program, and your rights to do with it as you please are severely restricted.
All software is licensed, not “sold”, so the licence terms apply as well as the copyright laws.
The licence terms impose additional limitations beyond those applied by virtue of the copyright laws. These limitations depend on the actual terms of the licence for that piece of software. If you bought the program, then you are obliged to abide by the terms of that licence. If the University bought it, then you as its agent (as well as the University itself) are obliged to observe those terms.
As the purchaser or agent of the purchaser, you are obliged to observe the terms of the software licence.
Sometimes the licence terms can be very restrictive and beyond what you might think is “fair”. You therefore have a duty to examine the terms of the licence before you buy, in order to decide if you are going to be able and willing to abide by those conditions. You also have a duty to ensure that those terms are observed once the package is acquired.
As purchaser or as agent of the purchaser you have an obligation to examine the licence terms before making a purchase.
Once you have made a purchase, you have an obligation to ensure the licence terms are observed.
Some licence terms which you might encounter and should be careful about (because they can be quite restrictive) are:
the software is restricted to use on one and only one processor (normally, exceptions are made for situations of computer failure, etc, and that may in fact constitute an acceptable defence); the software may be used by you and no-one else, ie you may not lend or sell your right to use the software; you may make only one backup copy of the program; the licence expires after a specified period of time, and you must pay more to have it renewed. Just because the terms seem unduly restrictive does not mean they can be ignored.
The method of entering into a licence agreement with the software vendor can vary in significant ways. For large packages, it is usually necessary to exchange a signed agreement with the vendor before the licence is granted. This is rarely used for personal computer software. Sometimes, you are asked to complete a registration card and send it to the vendor. Frequently there are incentives to do this, such as receipt of newsletters, free or cheap updates, access to telephone or other support services, etc. It is not altogether clear what the situation is if you fail to do this, but the courts are very likely to rule that use and/or retention of the software constitutes a de facto acceptance of the licence terms. Quite often the act of removing the plastic seal from around the software's box (shrink wrap) is deemed by the vendor to be acceptance of the licence terms. However, if the terms cannot be examined prior to removing the shrink wrap, you should then read them as soon as you open the box. You may then decide not to accept these terms, but you must return the software to the vendor immediately if you do not.
Examine the package the software arrives in carefully before opening it to find out if opening it places any kind of obligation on you.
If, on opening a package, you find you are not prepared to abide by the licence terms, return the whole package to the vendor immediately.
Once you have carefully read the licence terms, it is important that you take every reasonable measure to ensure that the terms are observed. You should also ensure that the licence agreement is stored in a secure location, so that it is available to refresh your memory from time to time, or to pass on to someone else taking over your custodial role.
Read the licence terms carefully, take steps to ensure the terms are observed, and store the licence agreement in a secure place.
Should you fail to observe any of the terms of the licence agreement, then you are liable to prosecution by the vendor. If you are acting as the agent for the University, then both you and the University could be held liable. Apart from any costs or damages that the vendor could claim, a likely outcome of a successful prosecution could well be a refusal by that vendor to deal with you or the University again. The adverse publicity would also be extremely damaging, and could result in other vendors refusing to do business.
Penalties for breaching vendors' licences could be extremely damaging to you and the University.
It is possible to negotiate licences which permit several copies of the one piece of software to be made and used. These are generally termed “site licences”. Sometimes, the licence permits as many copies as are required to be made and used, as long as they are all in the one location or “site”. In other variations, unlimited copies are permitted, so long as they are used only by the one organisation. Often the number of copies is restricted to some (relatively) large number. Frequently, records must be kept of all the copies that have been issued. More and more vendors are permitting such licence terms, which are especially beneficial to universities, so everything should be done to encourage vendors to introduce and extend such site licences.
Ensure that the terms of any site licence are properly observed.
The only way you can copy someone else's software, other than for backup purposes, is if the copyright owner grants you that right. One common category of software is “public domain” software, which is software for which the copyright holder grants everyone the right to make and use copies of his software, without payment of any fees. This is normally done by a notice which forms part of the software or is in a separate file that comes with the software.
Only if software contains a notice from the copyright owner allowing you to make and use copies at will can you do so.
Beware of software which has been made public domain (or is claimed to be public domain) by someone other than the copyright owner.
Do not copy software of unknown origin, or where there is any reason to believe that the software may be stolen.
When a copyright owner makes software public domain, he still retains his copyright, so you may still not sell the software without his permission.
Public domain software may not be sold to someone else, but it may be given to them.
A variation of public domain software is so-called “shareware”. This is software for which the copyright holder gives you permission to copy and distribute (without charge). However, if you start to use the software on any kind of regular basis, you are asked to remit a relatively small sum to the owner. Some quite reasonable software has originated in this way, and the system is to be encouraged. So do not abuse it or encourage others to abuse it.
Respect the terms of “shareware” software.
The terms of shareware are enforceable because they create a licence. Your acceptance of these terms (usually to pay a small sum) is given by your continued use of the software. If you don't like the terms, you should erase the software from your computer.