Copyright and Fair Use Guidelines

Before you assume that you need to get permission, check to see if it is necessary. You may not need permission to use a work if

• your use is allowed by a Creative Commons license
• the work is in the public domain

The copyright owner could be the original creator, the creator's heirs, or the publisher. Note that there may be several owners involved with one work. For example, in order to use recorded music, you may need to get permission from the composer, the performers, and the recording company.

To find the owner or owners,

• check the copyright notice in the work
• check the Copyright Office of the Library of Congress for any registration, but note that registration is no longer required
• check with collective licensing agencies, which handle permissions for authors, artists, musicians, and other professions.
  The Copyright Clearance Center is the most commonly used licensing agency for academic authors and publishers, but check the complete list for specialized agencies for music, film, drama, stock photography, software, cartoons, religious music, etc.

Usually an internet search will be sufficient for locating an author or publisher, but sometimes the search for a copyright owner can become complex.

Sometimes it is impossible to identify, locate, or get a response from the copyright holder: you are dealing with an "orphan work". In this case, you may

• reevaluate whether your planned use is fair 
• revise your planned use to fit within fair use principles
• seek alternative materials

In any case, carefully document your attempts to seek permission.

Although you may make initial contact with a copyright owner by phone, you should secure permission in writing. Publishers and licensing agencies may have a form that they prefer that you use for requesting permission. Keep careful records of your correspondence in seeking permissions.

Your written request should be as specific as possible and include:

• who you are
• what work or portion of the work you wish to use
• for what purpose you plan to use the work
• for how long you wish to use the work
• where and how the work will be used (classroom or online)
• why you think this person can give you permission

Photographs of people may involve rights of privacy or publicity, state and/or federal laws which limit the use of a person's likeness.  Consider:

• Using photographs of people taken in larger public scenes
• Avoiding photographs of famous people, or people engaging in private activities
• Being aware that Publicity rights limit commercial uses

Photographs of works of art may involve the rights of the work's creator/copyright holder. Consider:

• Using photographs of 2-D public domain works -- these are usually not protected by copyright

Buildings designed after Dec. 1, 1990 are copyrighted. Consider:

• Using photographs taken from a public place

Music that is fixed in a tangible form--sheet music, scores, written notes, any sort of recording, whether analog or digital--is protected by copyright just as other materials are.

First, determine if the music you want to use is in the public domain or available from a licensed resource.

Complicating factors:

• You may be dealing with layers of copyright: e.g. a musical recording involves separate copyrights held by the composer, the performers, and the recording company. 
• Copyright protects creative expression, so musical works are generally more protected than less expressive works. Dramatic musical works, such as opera or musical theater, are generally more protected than others.
• The purpose of your use is important. The use of music that is integral for teaching, comment, critique, or to illustrate a point would be more favored.

Images of all sorts--photographs, prints, paintings, illustrations, diagrams, graphs, maps, film, videos, digital or not--are protected by copyright just as other materials are.

• Determine if the image you want to use is in the public domain or available from a licensed resource.

Complicating factors:

• You may be dealing with layers of images: e.g. a digital reproduction of a book illustration or photograph. Although the original may be in the public domain, the digital reproduction may still be covered by copyright or license.
• The fair use principles allow for the use of a portion of a work, but an image may be an entire work in itself. Note that illustrations in books and articles may be individually copyrighted separately from the book/article. The Fair Use Guidelines for Educational Multimedia recommend using no more than 5 works by the same artist/photographer or no more than 15 images or 10% from a collective work (whichever is less), but also have restrictions on where and for how long these works can be used. They also recommend using no more than "10% or 3 minutes, whichever is less, in the aggregate of a copyrighted motion media work."
• Copyright protects creative expression, so an image that displays more individual expression is more protected than a more generic depiction. A dramatic film is more protected than an instructional film or news broadcast.
• The purpose of your use is important. The use of images integral for teaching, comment, critique, or to illustrate a point would be more favored than a merely decorative or supplementary use.  

Computer software is generally copyrighted just as a book is. Unlike a book, it is difficult to use just a small portion of it and call it fair use. Computer software can be sold, licensed or freely distributed. Just because software might be free, does not mean it is not copyrighted or that there is no license dictating terms of use.   

A license is a legal agreement between you and your software publisher. The license spells out what you can and cannot do with the software. It might specify the number of computers on which the software may be installed or address resale rights.  Software may include a validation feature as a check on proper use. There are several categories of software and licenses:

Shared source - Microsoft developed “shared source.” There is not one standard license for shared source, there are several. When using this software, read the accompanying restrictions on use. 

Shareware is proprietary software that is distributed freely or at low cost as a way for users to test drive  copyrighted software they are interested in purchasing. Shareware will usually come with a license and registration. Shareware often distinguishes between commercial and non-commercial use.

Freeware – Although free, this software is copyrighted. It may have proprietary code or it may be open source software. It could even be in the public domain. Look for possible restrictions on use.

Open Source (OS) software is copyrighted, but the copyright holder ascribes to the OS license principles. OS comes with a license that uses special criteria known as Open Source Definition (OSD) established by the Open Source Initiative. See OSD for the ten principles. This is non-proprietary software. It can be downloaded, modified and redistributed. Commonly known OS software examples include Apache and Mozilla. 

Implied License - This sort of license may appear on the box or in the printed information that comes with purchased software. There will be wording that states that your use of the software implies consent to the terms of use. (Simpson 88)

Shrink Wrap Licenses- These licenses are found after the buyer tears off the shrink wrap and opens the box. While “shrink wrap” licenses have been found to be unenforceable in some cases, one cannot assume this is will always be true. 

Click Wrap License- Also known as “click through,” this is similar to a Shrink Wrap license, but we find these all over the web or on CDs. The user is required to agree to terms before using the service. 

Copyleft License - This liberal license retains copyright for the creator, but allows the user to modify and distribute the software with the understanding that “downstream” users will be equally generous. GNU (General Public License) is a copyleft type of license.
Public Domain software – this is software that has no copyright restricting its use, no license, it’s free for you to use any way you wish.

If computer software is wrapped inside so many types of licenses, what does the exemption in the law allow me to do? ( Copyright Law, Title 17, Chapter 1, Section 117 Limitations on exclusive rights: Computer Programs)

The purchaser of an original copy of a computer program may “make or authorize the making of another copy or adaptation of the computer program provided:

(1)    that the new copy or adaptation is created as an essential step in using the program on one’s computer [an ephemeral copy] and that it is used in no other manner,  or

(2)     that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the coputer program should cease to be rightful.”

The making of an archival copy permitted under this section of the law does not apply to software that is licensed unless the license allows it. (Simpson 89)

If a computer needs maintenance or repair, section 117 allows the owner or lessee of the computer to make a copy of a computer program in order to make the repair. This extra copy made in order to repair the computer must be destroyed immediately after the repair is made.

Original copies of software and copies made from originals may be “leased, sold or otherwise transferred…only as part of the lease, sale or other transfer of all rights in the program.” Adaptations “may be transferred only with the authorization of the copyright owner.” However, if your license speaks to the lease, sale or transfer of software, you must abide by those stated restrictions. 

Can I make a backup copy of my purchased software program?

If the software is licensed, check to see what it permits. In most cases this is permitted. If the software has no license, you can keep the original purchased copy as the archival copy. The copy on your computer would be a second copy and is permissible.

I have some licensed software installed on my office desktop computer. Can I also install a copy on my laptop? I am the only one who uses it.

If it is on your office computer, it is likely covered by a university license. Check with IT. If you purchased the software, check your license.  Often this is possible. Remember too, with any situation, you can always ask permission from the software publisher or copyright holder.

I bought some software for my privately owned laptop and it's not software provided by the university. Can I leave my purchased software on my computer when I sell my computer to someone else?

If the software is licensed, check to see what kinds of transfer of ownership it permits. (Although there is some question about the enforceability of the license, the risk-averse path is to abide by the license). Look for a clause allowing you to transfer the software to a third party. The license may tell you if you need to uninstall it first. The software may have to be transferred as a separate item. If your software falls into one of the more liberal licenses above that permits this or is public domain software, you may sell the software on the computer. If the software has no license, you may sell or transfer the copy of your computer software to the new owner of your computer, but all use rights go with it. You may no longer use that software. This also applies to a lease situation.

If I have adapted the software, may I transfer the software to someone else?

If the software is licensed, check to see what it permits. Modifications may not be allowed unless the software falls under one of the more liberal types of license mentioned above. If the software has no license and does not fall into a category allowing adaptation, then adaptations may be transferred only with the authorization of the copyright owner, not the physical owner.

My colleague gave me a copy of a commercial software program that he bought. Can I use it and load it on my computer?

If the software is licensed, check to see what it permits. If the software does not fall into one of the more liberal types of licenses above and is not in the public domain, your colleague may not load it on your computer unless your colleague transfers it to you and removes it from his or her computer.

My colleague and I are working on a joint research project. He has special software that I will also need to use for a few months. Since we are doing educational research, can we share this software even though our license says we cannot? Is this fair use?

If the license does not permit it, then no.

I am a faculty member and I have a GIS program that I would like to add to the computer lab in my department for student use and instruction. Can I do this?

If the software is licensed, check to see what it permits. Generally, you need to buy a multi-user license or get volume licensing in order to add this to all your lab computers.

How do I know if RU has a site license for certain software?

To see what software is licensed to RU check with the IT department.

If my software license contains a “Not for resale” clause, can I resell it? The copyright law makes it sound like I can.

If the license clearly states you cannot resell the software, then you must follow the license. If you agree to the terms of a license, then it overrides this section of the law.

I have software that is licensed. Can I copy it to my newer computer? I don’t plan to use my old computer any longer.

If the software is licensed, check to see what it permits. Look for a reassignment clause. Many licenses will let you reassign software to a different device.

I have lost the license for my software. What do I do?

Many licenses are posted on the Website of the software publisher. If not, contact the software publisher.

Can I lend my software to a friend?

The only lending or renting of software allowed is for nonprofit libraries under the Copyright Software Rental Amendments Act of 1990.

If there is no copyright symbol on the software, is it under copyright?

Assume it is. The symbol is not required any longer.

Is reverse engineering of software legal?

This is an unsettled, technical and tricky area of law. Certainly the DMCA (Digital Millennium Copyright Act) prohibits overriding TPMs (technological protection measures) that prevent access to copyrighted work.  As shown in the 2004 Lexmark case, however, Static Control Components successfully reverse engineered a chip to work with Lexmark printers, with no consequences. Lexmark failed in its claim that this action circumvented its TPMs. However, no two cases are alike. The situational details of the Lexmark case present an interesting outcome, but the technical details in other cases may yield the opposite result. To read more about this case involving software copyrights and what defines TPMs, see Arstechnica or full 32 page opinion of the U.S. Court of Appeals, 6th District.

Are there any exemptions in the law regarding software?

Every three years the Copyright Office issues exemptions to the Digital Millennium Copyright Act. These exemptions address computer programs, DVDs, ebooks, film and more. These are listed as “Exemptions to Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works.” View the 2000, 2003, 2006, 2009 exemptions. Read these to find out what is legal.