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2.11 Computer Software

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Computer software is protected as a literary work under the Copyright Act. In general a school/TAFE institute’s use of computer software will be governed by the licence agreement which accompanies the software.

It is important to note that:

  • the Statutory Text and Artistic Licence does not apply to computer software
  • the software licence terms may attempt to override fair dealing and other statutory exceptions
  • the specific exceptions under the Copyright Act for computer programs do not apply to other types of digitised material such as CDs, CD-Roms, DVDs, MP3 files.

The Copyright Act contains a number of free use exceptions and other matters which allow copyright material to be used without the permission of the copyright owner. The free use exceptions relevant for educational institutions are set out below.

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  1. Fair dealing 

    The copying of computer software for fair dealing purposes is free and does not require the permission of the copyright owner. The relevant fair dealing exceptions are:

    See 1.13: Copyright Exceptions for further information

  2. Flexible dealing

    Schools/TAFE institutes can now use computer software for non-commercial teaching purposes if the use is not covered by another exception or Voluntary Licence. To use the flexible dealings exception, teachers must assess whether the proposed use:

      1. Is a special caseYour use will be a special case where it is narrow in both a qualitative or quantitative sense.  This means that you are only using what you need for educational instruction.
      2. Is for educational instructionEducational instruction means teaching (including remote teaching), preparation for teaching, preparing materials for students to use for homework or research tasks, or other uses that are in connection with teaching. 
      3. Is not for commercial advantage or profitYour use will be commercial where you, your students or your institute are making a profit or gaining a commercial advantage from the use of the material.  Cost recovery is likely okay. 
      4. Doesn’t conflict with the normal exploitation of the copyright materialYour use will probably conflict with the normal exploitation of the material where it is possible to purchase a similar resource. 
      5. Doesn’t unreasonable prejudice the legitimate interests of the copyright owner or person licensed by the owner
      Your use will prejudice the copyright owner if you:
      a. use more than you need;
      b. interfere with the quality of the material;
      c. expose the content to piracy, such as uploading the content to the Internet.Uploading the content to a password protected intranet, blog, wiki or content management system is okay provided students are not able to make further copies; and
      d. don’t remove the content from the password protected DTE as soon as practicable after it is no longer required for education instruction.

    Some examples of uses of computer software that would usually be covered by the flexible dealings exception would be:

    • decompiling computer software as part of a classroom IT lesson
    • translating an extract of computer code from one computer language to another as part of a programming lesson
    • allowing students to adopt a copy of computer software as part of a study project
    • including a 'screen shot' of a computer operation in a PowerPoint presentation as part of a lesson [For more information please see Flexible Dealings Information Sheet]
  3. Educational exceptions
    1. Performance in class

      It is not an infringement of copyright to run or demonstrate computer software in class (including a virtual classroom).

    2. Communication for classroom performance

      Schools and TAFE institutes are allowed to communicate computer software for classroom performance (eg running a program in a virtual classroom or via an electronic whiteboard).

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  4. Other statutory exceptions for computer software

    A number of specific exceptions apply to the copying and adaptation of computer software. If the school/TAFE owns a legitimate copy of computer software or has a licence from the copyright owner to use the software, then the following exceptions may apply:

    1. Running the program for the purpose for which it is designed

      Copyright in a computer program will not be infringed by running the program for the purpose for which it is designed.

      This exception cannot be relied on if the computer program is run in a way that is not permitted under the licence or by direction of the copyright owner.

      For example:

    2. Back-up Copies

      You are permitted to make a back-up copy for the purpose of

      • being used or stored in lieu of the original
      • enabling the owner to make a further reproduction if the original or the other reproduction is ‘lost, destroyed or rendered unusable’
      • normal back up copying of data for security purposes (this extends to all copyright material held on the computer's operating system)

      This exception does not apply to the making of a copy from an infringing or unlicensed copy or if the program has been designed so that copies cannot be made without modifying the program.

    3. Reverse engineering and interoperability

      Schools/TAFE institutes are permitted to reproduce computer software for the purpose of creating an interoperable program.

      Correcting error and security testing purposes

      Decompilation of programs for the purpose of testing errors and security testing is permitted

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