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Copyright Law and
New Technologies

Part 3 of a Series on Copyright and Fair Use


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Can you install personal software on a school computer, upload a photograph to your class Web site, or copy a descriptive link from another site? Part 3 of the Education World series on copyright answers those questions and more! Included: How to avoid the most common mistakes when using technology resources.

In Copyrights and Copying Wrongs, Part 1 of this Education World series on copyright, we learned that the only tangible works that can be copied without asking permission or considering fair use guidelines are works in the public domain and works that are not copyright protected.

If you need more detail about the works that fall into those categories, be sure to reread Part 1.

The guidelines for public domain and copyright protected works predate many of the new technologies used in schools today, so you won't find them in lists of copyright dos and don'ts. Usually, you'll have to rely instead on common sense and the right intent when determining what technology resources you and your students can use. We can, however, clear up a few of the most common misconceptions!

Repeat after me:

The Internet is not in the public domain. The Internet is not in the public domain. The Internet is NOT in the public domain.

Adrift in the Public Domain, in part 1 of the Education World series on copyright, provides a complete list of public domain resources. Notice that the Internet is not on that list. Most Web pages -- including the information on them and the code used to create them -- are protected by copyright law.

Quick Copyright Facts for Technology Users

* Most information on the Internet is not in the public domain.

* Most software, including freeware, is not in the public domain.

* A good way to determine whether a multimedia resource is copyright protected or in the public domain is to relate it as closely as possible to a print resource.

* Sometimes, asking permission is simply polite, even if you're not legally required to do so!

Because the Internet is a global resource, copyrighted work on the Web is governed by an international treaty, the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention, however, allows individual countries to establish their own rules about what works are in the public domain -- and those rules can vary from country to country. Don't assume that a work that is in the public domain in the United States is also in the public domain in another country.

WEB RESOURCES YOU CAN AND CANNOT USE

As a general rule, a good way to determine whether a multimedia resource is copyright protected or in the public domain is to relate it as closely as possible to a print resource. If publications created by the U.S. government are in the public domain, for example, so is information provided at U.S. government Web sites. If a book title cannot be copyrighted, it's safe to assume that the title of a Web page cannot be copyrighted.

Not every Internet resource can be related to a corresponding print resource, however. Erroneously posting copyrighted material to your own Web site carries even greater risks than innocently using copyrighted material in your classroom. If you plan to post work you have not created to your Web site, you should avoid

  • copying and posting links that contain descriptions of the linked sites, although posting links that contain only a URL and the title of the site is generally acceptable.
  • downloading graphics, including bullets, logos, fonts, photographs, and illustrations.
  • framing information from another site, particularly if you delete the site's ads or identifying information or make it look as if the information is your own.
  • deep-linking to an interior page of a site. Bypassing advertising or identifying information on a site's main page may deprive the copyright owner of revenue.
  • copying a site's html code.

Educators also should keep in mind that works posted on other sites might not have been posted by the copyright owner or with the copyright owner's permission. Just because a copyrighted work is already posted on the Web doesn't mean it's there legally. Even sites that have obtained the required permission may not have the right to transfer that permission to you. Always get permission to use a copyrighted online work from the owner of that work, not from a secondary source. If you plan to use the work online, be sure to get permission to use the work electronically. Print rights and electronic rights are not the same thing.

JUST BAD MANNERS

Because copyright laws are mostly about money, you probably won't be accused of copyright infringement if the works you use are unlikely to bring financial gain to their creators. You may, however, still be accused of bad manners. Sometimes it's simply polite to ask permission, even if you're not legally required to do so! Asking permission is a good idea if you intend to

  • post, or quote from, e-mails posted to a mailing list, message board, or newsgroup. Most participants in such groups intend their remarks for a limited audience and may not appreciate wider distribution. No one likes being quoted out of context!
  • post, or quote from, personal e-mails.
  • link to sites that contain large amounts of video or audio. The resulting traffic can seriously strain some servers.

AND THEN THERE IS SOFTWARE

Repeat after me:

Freeware is not in the public domain. Freeware is not in the public domain. Freeware is NOT in the public domain.

All software, like all other tangible, original work, is copyrighted on creation. Because no piece of software has been in existence long enough to pass into the public domain, the only public domain software currently available is software that the owner has expressly relinquished to the public domain. Such software is usually clearly labeled.

Although public domain software is free, the reverse is not inevitably true. Most free software, or freeware, is not in the public domain. Using Software: A Guide to the Ethical and Legal Use of Software for Members of the Academic Community, from the University of Miami, offers the following overview of the three types of software not in the public domain.

1. Commercial software represents the majority of software purchased. In general, commercial software licenses stipulate that

  • the software is covered by copyright.
  • 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.
  • modifying the software is not allowed.
  • decompiling (reverse engineering) of the program code is not allowed without the permission of the copyright holder.
  • developing new work built on the package (derivative work) is not allowed without the permission of the copyright holder.

2. Shareware software licenses allow purchasers to make and distribute copies of the software but demand that if, after testing the software, you adopt it for use, you must pay for it. In general, shareware software licenses stipulate that

  • the software is covered by copyright.
  • 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.
  • modifying the software is not allowed.
  • decompiling (reverse engineering) of the program code is not allowed without the permission of the copyright holder.
  • developing new work built on the package (derivative work) is not allowed without the permission of the copyright holder.

Note that selling software as shareware is a marketing decision that does not change its copyright status.

3. Freeware is also covered by copyright and subject to the conditions defined by the holder of the copyright. In general, freeware software licenses stipulate that

  • the software is covered by copyright.
  • copies of the software can be made for both archival and distribution purposes but that distribution cannot be for profit.
  • modifying the software is allowed and encouraged.
  • decompiling (reverse engineering) of the program code is allowed without the explicit permission of the copyright holder.
  • developing new work built on the package (derivative work) is allowed and encouraged with the condition that derivative work must also be designated as freeware. That means that you cannot modify or extend freeware and then sell it as commercial or shareware software.

SOFTWARE AND SCHOOL USE

What does all that mean to you? It means that copyright law protects at least some aspects of the program code, structure, content, organization, and user interface of virtually every computer software program. Although licensing agreements may vary, as a rule, you cannot

  • install personal commercial or shareware software on school computers.
  • make copies of personal commercial software and distribute them to teachers or students.
  • make copies of commercial software licensed to your school or district and distribute them to teachers or students.
  • use shareware for extended periods, usually stipulated in the licensing agreement, without paying for it.
  • alter commercial or shareware software in any way.
  • alter freeware for commercial purposes.

You may, depending on the licensing agreement, be permitted to

  • install a personal commercial software program on a single classroom computer (in addition to your home computer) for limited personal use or for use with your students.
  • copy software licensed to your school or district for limited job-related use at home.

It's important to recognize, however, that when you buy or download software not in the public domain, you do not actually own the software; you merely acquire a license to use it in accordance with certain conditions. Because those conditions vary from program to program, you should carefully read the licensing agreement for every piece of software you use.

Remember, the best rule of thumb for using any work you did not create -- whether print or electronic -- is

When in doubt, ask permission!

EDUCATION WORLD'S COPYRIGHT SERIES

The Educator's Guide to Copyright and Fair Use
Part 1: Copyrights and Copying Wrongs
Part 2: Is Fair Use a License to Steal?
Part 3: Copyright Law and New Technologies
Part 4: Applying Fair Use to New Technologies
Part 5: District Liability and Teaching Responsibility

Click here to return to the main page of the Education World copyright series.

Editor's Note: The information contained in this article is, to the best of our knowledge, correct and up-to-date. Copyright laws and the circumstances surrounding the use of copyrighted materials can be difficult to interpret, however, and information in this article should not be construed as legal advice.

Article by Linda Starr
Education World®
Copyright © Education World

Updated 05/25/2010