Learning Module:
What Chemists Need to Know about Copyright
Frequently Asked Questions about Copyright
Presented by the American Chemical Society Joint Board/Council Committee on Publications
Subcommittee on Copyright
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General Questions
- What is "copyright"?
- Why are copyrighted materials called intellectual property?
- What materials should I expect to be covered by copyright protection?
- Is there published material not covered by copyright protection?
- If there is no explicit claim of copyright on a published work, is it protected?
- Am I required to register a work for copyright protection?
- Is a publisher or an author required to use a copyright notice?
Use of Copyrighted Material
- Does the existence of copyright protection mean I cannot use material for a specified use (e.g., classroom presentations, sharing with colleagues, course handouts)?
- How do I get permission to use copyrighted material? How much will I have to pay to use copyrighted material?
- What is "fair use"?
- What is the "public domain"?
- Are there any materials I can safely assume are not covered by copyright?
- If a book is out of print, does that mean the copyright has expired?
- May I make a printed copy of an article in an ACS journal for my own personal us?
- May I use information from copyrighted material without obtaining explicit permission?
Works Made for Hire
- If you are a salaried employee of ABC Chemical Company and you prepare a paper on your research for publication in a journal, who owns the copyright?
- Does copyright protection differ for "works made for hire?"
- What about commissioned or specially ordered work?
- Who owns the type of work described in #18 above and how long is the copyright term?
- What rights do independent contractors have?
ACS Policies
- When I author a paper for an ACS publication, why am I required to transfer my copyright to the ACS?
- Do I have any rights to use material that I have authored, but for which ACS holds copyright?
- Can I assume papers I have published in non-ACS journals are covered by the same rules as those published in ACS journals?
- May I post papers I have authored on my Web site, even though ACS holds copyright?
- May I post figures from papers on my Web site, even though ACS holds copyright?
- May I provide a link on my Web site for my papers published by the ACS?
- Once I sign over copyright for my paper to the ACS, may I keep drafts of manuscripts, either as hard copies or on electronic media?
- May I compile a retrospective publication (with a non-ACS publisher) containing the papers I have published in ACS journals? What restrictions are there on such use?
Electronic Material
- How are copyright protections on electronic material (e.g., ACS Web editions) different from those for printed material?
- Suppose I download a PDF file of an article from the ACS Web site in accord with permission listed on the site. May I then email that file to a colleague, or post it on a file server for my students/colleagues?
- If I download a PDF file of a paper from the ACS site, may I keep it on my computer’s hard drive?
- I am a student writing my thesis. May I use papers I have authored in ACS journals, or material from them, in my thesis without obtaining explicit permission?
- My university requires me to publish my thesis on the Web. Does that change what and how I can use material I have authored but for which ACS holds copyright?
Other
- If I know someone else is making an unauthorized copy of an ACS-copyrighted publication, what should I do?
- I am writing a review article, and wish to use tables and graphical elements from ACS publications. What am I required to do to get permission for such use?
- If I cannot obtain permission to use copyrighted material, may I use the information in a (table, figure, chart) to construct a new (table, figure, chart) of my own?
- I have a question not fully covered here. Where should I look for clarification?
- What is copyright?
Copyright is a form of intellectual property law, which protects original works of authorship including literary, dramatic, musical, and artistic works. Copyright grants the owner the exclusive rights to do and to authorize any of the following:
- to reproduce the copyrighted work;
- to prepare derivative works based upon the copyrighted work;
- to distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
Copyright is automatically secured when original works of authorship are fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (U.S. Copyright Act, Title 17, U.S. Code, Sections 102, 106)
- Why are copyrighted materials called intellectual property?
The rights to these intellectually created materials are properties that can be transferred or held, and used for the owner's benefit. Copyright is one form of intellectual property, and is distinguished from others (patents, trademarks, trade secrets) by virtue of specific laws and judicial interpretations of those in light of powers established in the U. S. Constitution.
- What materials should I expect to be covered by copyright protection?
If you write a paper or a book, develop a computer program, send an e-mail, or take a photograph, you automatically own copyright to that work, unless you did it for your employer. (See also Transfer of Copyright.)
Section 102 of the U.S. Copyright Act addresses the subject matter of copyright and lists works of authorship that are copyrighted if they are "fixed" in a tangible medium of expression from which they can later be retrieved, with or without the aid of a machine or device. Subject matter includes literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works.
- Is there published material not covered by copyright protection?
Copyright does not protect facts, ideas, systems, or methods of operation, although it might protect the way these are expressed. Works for which all authors are employees of the U.S. Government and prepared the work as part of their official duties are not protected by U.S. copyright, nor are works that were published before 1978 without a copyright notice. A work is in the public domain when its copyright term expires. In the U.S., copyright lasts for life of author plus 70 years; for commissioned works and works for hire, copyright lasts for 95 years from the date of publication. This legislation, which was signed into law in late 1998, brought the U.S. in line with copyright terms in other countries. Also, authors may choose to place their work in the public domain prior to the expiration of copyright, though this is rare.
- If there is no explicit claim of copyright on a published work, is it protected?
All written work (as well as film, tape or digitally-recorded work) is subject to an implied copyright; specific notice is not required despite the greater level of legal protection afforded to the copyright holder by such notice.
- Am I required to register a work for copyright protection?
A work does not need to be registered to enjoy copyright protection; however, there are certain advantages to registering a work for copyright, such as to receive an award of attorney's fees in an infringement case, if a court chooses to make this award, and to claim ownership and state facts of ownership in the registration certificate.
To register a work, submit the appropriate registration application along with the required deposit copies (generally two of the "best edition"), and send it along with the required fee to the U.S. Copyright Office. By registering a work for copyright, you satisfy the requirement of depositing copies with the Library of Congress.
- Is a publisher or an author required to use a copyright notice?
A copyright notice is not required for copyright protection. However, if a notice appears, it consists of these elements: The word "copyright" and/or the copyright symbol, the date of publication, and the name of copyright holder, which should be spelled out, not abbreviated.
Copyright © 2006 American Chemical Society
The notice serves several purposes: to alert users that the work is protected and to give the date of publication and the name of the copyright owner. If you get permission from a publisher to reuse copyrighted material and that publisher requires that you use a copyright notice as part of the terms for permission, then you must do so.
- Does the existence of copyright protection mean I cannot use material for a specified use (e.g., classroom presentations, sharing with colleagues, course handouts)?
In general, use of copyrighted material is controlled by the copyright holder. That person (or entity) may allow particular uses.
According to the U.S. Copyright Law, the reproduction (or adaptation) and distribution or transmission of copyrighted material is prohibited without permission of the copyright holder, unless the use is a "fair use." Sections 107 and 108 of the U.S. Copyright Law include language that a court will consider in deciding whether or not a particular use is a fair use. Keep in mind that the definitions are general and difficult to interpret. (Refer to Sections 107 and 108 of the U.S. Copyright Law)
Both the request for use and the permission to use should be in writing and dated; most publishers require this. Each of the four factors listed in Section 107 of the U.S. Copyright Law are used by courts to determine whether or not a particular use of a copyright work a "fair use". Below is wording for Section 107, including the introductory paragraph.
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." Only the courts can determine whether a particular use is a fair use or not.
For private, scholarly research purposes, students may normally make one copy of a journal article, book chapter, etc., but not a copy of an entire work (i.e., a journal issue, magazine issue, or book).
When in doubt, it is prudent to request permission from the copyright owner.
- How do I get permission to use copyrighted material? How much will I have to pay to use copyrighted material?
To obtain permission for using copyrighted material one needs to contact the holder of the copyright. Normally this will be the publisher, but it may instead be the author or a third party (as noted in a copyright notice attached to the work). Whether to charge for the use you seek to make, and the amount of that charge, is wholly up to the copyright holder.
The ACS accepts requests for copyright permissions at copyright@acs.org; policies for individual publications are at http://pubs.acs.org/copyright/.
- What is "fair use"?
See the answer to Q. 8 above.
- What is the "public domain"?
Works that are in the "public domain" may be copied and used without permission of the author, publisher or other entity. Several classes of material make up the public domain.
- Works whose copyright protection has expired or lapsed; this occurs 70 years after the death of the author (or 95 years after the death of the author for works made for hire) in the U. S.
- Works prepared as works for hire when all authors are employees of the U. S. Government.
- Works that have been explicitly released from copyright protection by their legitimate copyright holders.
Note that some authors grant blanket permission to reproduce certain works (e.g., the ACS grants such permission for noncommercial purposes for its pamphlet on copyright at http://pubs.acs.org/copyright/forms/acs_copyright_pamphlet.pdf; this does not mean that other uses (e.g., making derivative works) are permitted without permission.
- Are there any materials I can safely assume are not covered by copyright?
Generally speaking, anything written or composed by an author or authors prior to 1923 is in the public domain due to expiration of copyright.
- If a book is out of print, does that mean the copyright has expired?
Whether a book is in print or out-of-print has no bearing on its copyright status.
- May I make a printed copy of an article in an ACS journal for my own personal use?
If your use falls under "fair use" guidelines, you might be able to make a copy for personal use. However, whether your use qualifies as "fair use" may be difficult to ascertain without competent legal advice. See the answer to Question 8 above.
- May I use information from copyrighted material without obtaining explicit permission?
Information is not protected by copyright. However, the form in which information is presented (e.g., a table or a diagram, or a format in which the information is laid out) may be protected.
- If you are a salaried employee of ABC Chemical Company and you prepare a paper on your research for publication in a journal, who owns the copyright?
Your employer. If copyright is to be transferred, your employer must delegate such transferring responsibility. The authorized individual will sign the copyright assignment. Companies have various ways of delegating this signing responsibility, sometimes through their legal staff, sometimes through the library staff or to primary authors.
- Does copyright protection differ for "works made for hire?"
Yes. The term is 95 years from the date of publication or 120 years from the date of creation, whichever expires first. Works not made for hire are protected for the life of the author plus 70 years.
- What about commissioned or specially ordered work?
To be considered a work made for hire the use must fall in one of the following uses:
- as a contribution to a collective work
- as part of a motion picture or other audiovisual work
- as a translation
- as a supplementary work (forwards, afterwards, pictorial illustrations, maps, charts, tables, bibliographies, appendices, indexes, editorial notes, musical arrangements)
- as a compilation
- as an instructional text
- as a test
- as answer material for a test
- as an atlas
There is a further requirement that the parties must agree in writing that the work will be considered a "work made for hire."
- Who owns a "commissioned or specially ordered work" and how long is the copyright term?
If the work meets the above prerequisites it is a work for hire and is owned by whoever commissioned or ordered it. The term is 95 years from the date of publication or 120 years from the date of creation, whichever expires first.
- What rights do independent contractors have?
Independent contractors own their work unless they have signed a contract that specifically provides that they are creating a work for hire and the use is covered by the nine uses listed in Q. 18.
- When I author a paper for an ACS publication, why am I required to transfer copyright to the ACS?
Transfer of authors' copyright to ACS serves several useful ends. The ACS generally has more and better resources to defend and protect copyright than do most individual authors. The ACS provides a single, central contact for dealing with grants of copyright permissions, and allows consistent policies to be used to govern copying uses. The transfer agreement itself grants back to the authors considerable rights for how they may use material they have created. As a scientific society, the ACS accepts the responsibility for promoting the scientific integrity of published work, and defense of copyright is an element in that process.
- Do I have any rights to use material that I have authored, but for which ACS holds copyright?
The current ACS copyright transfer agreement (See http://pubs.acs.org/copyright/) provides several explicit rights:
- The right to revise, adapt, prepare derivative works, or present the material orally.
- The right to distribute up to 50 copies of the work without explicit permission of the ACS.
- The right to post the title, abstract (but no other text), figures or drawings from the paper to their personal Web site.
- The right to use figures or other graphical material in their own scholarly research papers.
- The ACS also agrees to request the authors’ permission before granting permission to copy or use material in the paper in question.
Other specific rights of authors are delineated in the agreement.
- Can I assume papers I have published in non-ACS journals are covered by the same rules as those published in ACS journals?
Other publishers have different policies than ACS. You will need to contact individual publishers to find their policies.
- May I post papers I have authored on my Web site, even though ACS holds copyright?
Only the title, abstract, and graphical material may be used without further permission of the ACS. You may provide a link to the paper using the Digital Object Identifier link (see Q. 26 below).
- May I post figures from papers on my Web site, even though ACS holds copyright?
The copyright transfer agreement you sign grants back to you the right to post figures and drawings from your paper on your Web site.
- May I provide a link on my Web site for my papers published by the ACS?
Because a web address or URL (Universal Resource Locator) may change over time, authors should use the Digital Object Identifier or DOI that ACS provides for each article instead of a URL. A DOI has the form: http://dx.doi.org/##.####/######, where #'s indicate the specific ID info for your paper. Legal opinion and case law is split on whether absolute URLs are copyright protected. ACS policy prohibits so-called "deep linking" and encourages use of DOI locaters.
A DOI® (Digital Object Identifier) is a name (not a location) for an entity on digital networks. It provides a system for persistent and actionable identification and interoperable exchange of managed information on digital networks. Source: http://www.doi.org/overview/sys_overview_021601.html
- Once I sign over copyright for my paper to the ACS, may I keep drafts of manuscripts, either as hard copies or on electronic media?
ACS has not expressed a policy concerning such work product, although this material would reasonably fall under "use in the authors own scholarly research papers," and would be permitted under the terms of the Copyright Transfer Agreement.
- May I compile a retrospective publication (with a non-ACS publisher) containing the papers I have published in ACS journals? What restrictions are there on such use?
Republication of any ACS journal paper requires permission of the ACS. A fee may be required from the publisher of such a retrospective work, to be determined on a case-by-case basis depending on the extent to which ACS-copyrighted material composes the new work.
- How are copyright protections on electronic material (e.g., ACS Web editions) different from those for printed material?
The same general principles that apply to print (or other fixed) media also apply to electronically-distributed works. There is no inherent difference in how copyright law applies to digital works, whether they are Web pages, software, or other works in the electronic media.
One slight difference has to do with copy protection technology. The Digital Millennium Copyright Act made it a felony to attempt to circumvent copy protection technologies applied to works in the electronic media, or to traffic in circumvention technology. This prohibition also applies to uses that may be fair use.
- Suppose I download a PDF file of an article from the ACS Web site in accord with permission listed on the site. May I then email that file to a colleague, or post it on a file server for my students/colleagues?
As a general rule, copying and distributing electronic material (be it a PDF file or other type of data file) that is protected by copyright is limited to the same extent that photocopying the article would be. Given the extensive use of institutional licensing for ACS materials, your colleagues can often access the same material, and giving them the appropriate journal reference is as easy (and accomplishes the same end) as giving them the file itself.
- If I download a PDF file of a paper from the ACS site, may I keep it on my local computer?
Retention of ACS-copyrighted files on computer hard drives is a question that touches on fair use of the material. Simply opening the file in your Web browser will create a local copy in the browser cache; it is expected that such files are temporary and required for the normal use of the technology. Use of a "cache browser" could be construed as an anticircumvention technology. Preserving a copy for future reference would be allowed provided such activity fell under "fair use" guidelines which, as noted, may vary considerably among individual circumstances. Creating a "library" of such files would almost certainly violate even fair use privileges.
- I am a student writing my thesis. May I use papers I have authored in ACS journals, or material from them, in my thesis without obtaining explicit permission?
ACS extends blanket permission to students to include in their theses and dissertations their own articles or portions thereof, that have been published in ACS journals or submitted to ACS journals for publication, provided that the ACS copyright credit line is noted on the appropriate pages. Students should be aware that ACS has no objection to including part or all of one's paper in the thesis in print and microfilm formats; however, the electronic distribution of the unpublished paper by the student, UMI, the Networked Digital Library of Theses and Dissertations, or any other party or organization might jeopardize publication by ACS. Upon publication of the paper by ACS, the student may inform UMI, NDLTD, or any other thesis dissemination service that the thesis may be distributed in electronic format.
- My university requires me to publish my thesis on the Web. Does that change what and how I can use material I have authored but for which ACS holds copyright?
See answer to Q. 32.
Because of the public nature of the Web, you should be even more aware of the likelihood that such publication may jeopardize an editor's willingness to accept material from such a thesis as "unpublished."
- If I know someone else is making an unauthorized copy of an ACS-copyrighted publication, what should I do?
Contact the ACS copyright office copyright@acs.org.
- I am writing a review article, and wish to use tables and graphical elements from ACS publications. What am I required to do to get permission for such use?
Contact the ACS copyright office; the Copyright tab under the (original) journal's home page has links to required forms.
- If I cannot obtain permission to use copyrighted material, may I use the information in a (table, figure, chart) to construct a new (table, figure, chart) of my own?
Without permission from the copyright holder, use of copyright-protected material is not legal and leaves you open to civil and/or criminal liability. Publishers of review articles generally will not proceed to publication without an author having received explicit copyright permissions for copied work. The only alternative is to present the information (not copyrightable) in an original format that is not derivative of the original work.
- I have a question not fully covered here. Where should I look for clarification?
General questions about copyright are covered in more detail by the Library of Congress site (http://lcweb.loc.gov/copyright). Questions concerning ACS copyright policies may be directed to copyright@acs.org.
This material is an adaptation from the ACS pamphlet "Are
You Up To Date On Copyright Issues?" [PDF] Copyright © 1990, 1992, 1995,
1997, 1999 American Chemical Society
Many copyright issues require consulting a competent attorney.
