Please note that the following Guide does not constitute legal advice. The information is intended only to provide initial guidance; the result in a particular case is a function of all the facts and circumstances. Legal advice should be obtained from a competent professional who is aware of all of those facts and circumstances.
CMS must take steps to insure that ADAMS is being used only for its intended professional, critical, and educational purposes, and will not be used as a conduit for the transfer of copyright-protected material over the web. For that reason, we are asking that the uploader of material verify that:
- the material is not protected by copyright; or
- he or she owns the copyright in the material; or
- he or she has obtained permission to use the material; or
- it is a fair use.
1. The material is not protected by copyright.
Since March of 1989, U.S. copyright protection has automatically attached to any original work at the moment of creation. No notice or registration of the work is required. Prior to that date, if the work was published, the copyright claimant was required to affix a notice indicating the claim to copyright with the symbol 8 or the word copyright, the name of the claimant, and the year. Furthermore, until 1978, copyright was measured by a term of years and protection was lost if the copyright was not registered at the end of that term.
Therefore, some of the ways a work may not be protected by copyright in the U.S. include the following:
- It was insufficiently creative to qualify. The standard is low, however, and most works qualify.
- It was created between 1923 and 1978 and published without notice (or between 1978 and March of 1989 without notice and no attempt was made to remedy the oversight) so that protection did not attach.
- It was created before 1964 and published with notice, but copyright was not renewed at the end of the initial term. This is probably true of the majority of works published during that time, but obviously less true of commercially valuable works. However, it can be very difficult to determine whether protection was lost in this manner, as the Copyright Office records prior to 1978 are not readily searchable.
- It was protected by copyright, but the term has expired, and the work is now in the public domain. Recent amendments to U.S. copyright law have increased the term of works protected by copyright, however, so that only works created prior to 1923 have fallen into the public domain.
2. The uploader owns the copyright in the material.
- You may be the owner of the copyright in the material if you created it. For example, if you wrote a musical composition or took a photograph, you own the copyright. One significant exception, however, is the "work made for hire" doctrine. If you created the work for your employer or under a "work for hire" contract, then the copyright might not be yours. For example, a work created by a college professor technically belongs to the college. Many schools, however, recognize a "teacher exception" in which they allow faculty to claim copyright in works created as part of their duties.
- You may also be the owner of the work if it was transferred to you, either by assignment of copyright or by inheritance. On the other hand, if you were the creator of the work, you might have transferred the copyright. If you entered a contract to publish the work, such as a book publishing contract or a music publishing contract, whether you kept the copyright or not, you may have given up rights to use the work if you transferred the exclusive rights to the publisher. Your contract will tell you what rights you have.
3. The uploader has obtained permission to use the material.
If, after going through the steps above, you have determined that the work is protected by copyright that belongs to another person, then you must obtain permission to use the work. Permission should be obtained in writing.
Please consult What Permissions are Required To Use Copyrighted Material for an overview of the uses for which permission must be obtained.
4. The use is a fair use.
If a work is protected by copyright, use that might otherwise infringe the work is not considered an infringement if the use is a fair use. In determining whether a use is a fair use, the Copyright Act requires examination of the purpose of the use as well as four additional factors:
commercial or nonprofit educational use
the nature of the work
the amount of the work used
the effect upon market or value
There is sometimes a misunderstanding that any non-commercial use of a work is a fair use. This is not true. However, a strong factor in determining that the use of a work is a fair use is that the work is used for purposes of criticism, comment, teaching, scholarship or research. Uploaders and downloaders of material to the ADAMS site are asked to acknowledge that they are using the work for these purposes.
Another factor in fair use is the amount and substantiality of the portion used. If you are using a copyrighted musical composition for the enumerated purposes, it will strengthen the fair use argument if you use only a portion of the work.
For Further Information
For further information you may wish to consult a copyright attorney. In addition, the following Web sites may be helpful:
United States Copyright Office
Copyright Act of 1976 (interactive)
Fair Use of Copyrighted Materials