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Mandatory deposit for works published in the United States Edit

Although copyright registration is not required, the 1976 Copyright Act establishes a mandatory deposit (also called legal deposit) requirement for works published in the United States. Works first published before March 1, 1989, are subject to mandatory deposit if they were published in the United States with copyright notice.

Under the Copyright Act of 1976,[1] the owner of copyright, or of the exclusive right of publication, in a work published in the United States is required to deposit two complete copies (or, in the case of sound recordings, two phonorecords) of the best edition of the work with the Copyright Office for the use or disposition of the Library of Congress.

The deposit is to be made within three months after such publication. Failure to make the required deposit does not affect copyright in the work, but it may subject the copyright owner to fines and other monetary liability if the owner fails to comply after a demand for deposit is made by the Register of Copyrights.[2] These general provisions, however, are subject to limitations. For example, Section 407 provides that the Register of Copyrights "may by regulation exempt any categories of material from the deposit requirements of this section, or require deposit of only one copy or phonorecord with respect to any categories."[3]

The law provides the Library of Congress with an opportunity to acquire the deposit copies, but it does not require the Library to acquire them, or to preserve them.[4] Rights holders are required to deposit works for the Library regardless of whether they register the copyright, but if they do register, the copies submitted with registration application can serve as the deposit copies.[5] Deposits made in connection with registration that are not selected by the Library are retained by the Copyright Office] “for the longest period considered practical and desirable by the Register of Copyrights and the Librarian of Congress.” After that period they may, in their joint discretion, order the disposal or other disposition of copies of published works.[6]

Certain categories of works are exempt entirely from the mandatory deposit requirements, and the Register may also require only one copy of the work or allow alternative forms of deposit.[7]

Use of mandatory deposit to satisfy registration requirements Edit

For works published in the United States, the 1976 Copyright Act contains a provision under which a single deposit can be made to satisfy both the deposit requirements for the Library and the registration requirements. In order to have this dual effect, the copies or phonorecords must be accompanied by the prescribed application form and filing fee.

Regulations relating to mandatory deposits Edit

Section 407 provides that the Register of Copyrights “may by regulation exempt any categories of material from the deposit requirements of this section, or require deposit of only one copy or phonorecord with respect to any categories.”[8] Accordingly, the Copyright Office, with the approval of the Librarian of Congress, established regulations governing mandatory deposit and deposit for registration of copyright, which are set forth in Chapter II, Part 202 of Title 37 of the Code of Federal Regulations (CFR).

Section 202.19 establishes the standards governing mandatory deposit of copies and phonorecords published in the United States for the Library of Congress. Section 202.20 prescribes rules pertaining to the required deposit for registration of a copyright claim with the Copyright Office under section 408 of Title 17, and section 202.21 allows "for a deposit of identifying material in lieu of copies or phonorecords in certain cases, for both mandatory deposit and registration deposit."

In addition, the Library of Congress’s Best Edition Statement in Appendix B of Part 202 in a form requiring the use of a machine or device for purposes of optical enlargement (such as film, filmstrips, slide films and works published in any variety of microform), and works published in visually perceivable form but used in connection with optical scanning devices, are not within this category and are subject to the applicable deposit requirements.[9] At the time this exemption was promulgated, copies of such machine-readable works were not widely marketed to the public. Thus, the Library decided not to require their deposit.

However, by the mid–1980s many important reference materials traditionally made available only in print form were being published in whole or in part in machine-readable form (e.g, CD-ROM) and the public’s demand for access to and use of these materials had increased significantly. In addition, the Library’s interest in collecting computer programs published in IBM and Macintosh formats was growing, and it needed a way to obtain these works for its collection. As a result, the Library established a Machine-Readable Collections Reading Room, and, in 1989, the Copyright Office amended the machine-readable copies exemption so that machine-readable works published in physical form were subject to mandatory deposit and only “automated databases available only online in the United States” were exempted.[10]

The 1989 amendments also added two classes of works to the list of those not covered by the exemption: "automated databases distributed only in the form of machine-readable copies (such as magnetic tape or disks, punch cards, or the like) from which the work cannot ordinarily be visually perceived except with the aid of a machine or device" and "computerized information works in the nature of statistical compendia, serials, and reference works." Two years later, the Copyright Office amended section 202.19(c)(5) yet again to explicitly identify CD-ROM-formatted works as another category of works no longer included in the exemption [11]

Regulatory interpretation and practice Edit

The term “automated database,” although used in the regulations to characterize a class of works, is a term that has not been defined in Title 17, and neither the Copyright Office regulations regarding mandatory deposit, nor the relevant Federal Register notices proposing and implementing regulatory changes, provide a definition of the term. However, the Copyright Office did provide a definition in its "Circular 65: Copyright Registration for Automated Databases." The circular defines an “automated database” as “a body of facts, data, or other information assembled into an organized format suitable for use in a computer and comprising one or more files.” This definition comports with the general understanding of what constitutes a database, in that a database usually would not include works like journals, newspapers or encyclopedias.

Even so, the Copyright Office practice to date has been, for purposes of mandatory deposit, to interpret this category broadly to encompass all electronic works published only online.

To understand how this interpretation evolved, it should be noted that when section 202.19(c)(5) was amended in 1989, there was no tension involved in using the category “automated databases available only on-line in the United States” to refer to all online-only publications. For all practical purposes, the only works being published online at that time were automated databases, e.g. Westlaw and Nexis. The Copyright Office, however, did not revise its definition of automated databases as other categories of works, such as articles and serial titles, began to be published online. It chose instead to include these works in the exempted category “automated databases available only on-line in the United States” as a matter of convenience because, at that time, the Library exhibited neither the intention nor the technological ability to collect such works.

Unfortunately, the effect of these practices has been to stretch the definition of the excluded category “automated databases available only on-line in the United States” beyond its generally understood limits.

Proposed revision to "automated databases" exception Edit

The Copyright Office has proposed a revision to the "automated databases" exemption.[12] The proposed revision to the exemption will replace this category with the more accurate “electronic works published in the United States and available only online."

Twenty years have passed since the adoption of the regulation used to exclude from mandatory copyright deposit electronic works published in the United States and available only online. In that time, the Internet has grown to become a fundamental tool for the publication and dissemination of millions of works of authorship. The current inability of the Library to acquire online-only works through mandatory copyright deposit places the long-term preservation of the works at risk.

To fulfill its mandate of sustaining and preserving a universal collection of knowledge, the Library is currently developing technological systems that will allow it to electronically ingest online-only works and maintain them in formats suitable for long-term preservation. As part of this process, the Library will also establish policies and practices to insure the security and integrity of its electronic collections, and to provide appropriate, limited access as allowed by law. So that this strategy may be implemented, the Copyright Office has proposed to amend the mandatory copyright deposit regulations and thus enable the on-demand mandatory deposit of electronic works published in the United States and available only online (i.e., not published in physical form).

Furthermore, because the revised exemption would apply exclusively to published online-only works, there will be no need to retain the current list of machine-readable works in physical formats to which the exemption does not apply. The revised exemption would not apply to those works published in both physical and online formats. These works, because they are not published “only” online, were never exempted from mandatory deposit by §202.19(c)(5).[13]

The proposal proposes that the current section 202.19(c)(5) exemption be amended so that all electronic works published in the United States and available only online enjoy a qualified exemption from mandatory deposit, which would mean that any [work]] in this class is exempt until the Copyright Office issues a demand for its deposit. This revised exemption would apply to all published electronic works available only online. It would apply to serials, monographs, sound recordings, automated databases, and all other categories of electronic works.

In proposing a qualified exemption, the Copyright Office seeks to balance the current needs of the Library of Congress against the imposition of a mandatory requirement on all copyright owners of works published exclusively online to deposit one complete copy of the best edition. Guidance for adopting this approach comes from the House and Senate Reports for the Copyright Act of 1976 which state that:

The fundamental criteria governing regulations issued under section 407(c) . . . would be the needs and wants of the Library. The purpose of this provision is to make the deposit requirements as flexible as possible . . . so that reasonable adjustments can be made to meet practical needs in special cases. The regulations, in establishing special categories for these purposes, would necessarily balance the value of the copies or phonorecords to the collections of the Library of Congress against the burdens and costs to the copyright owner of providing them. [14]

By exempting published electronic works available only online until a demand is made, the proposed qualified exemption addresses the practical difficulties of acquiring works published in non-physical formats, ensures that the Library will only receive those works that it needs for its collections, and reduces the burdens on copyright owners, who will only have to deposit those works demanded by the Copyright Office.

Title 17’s mandatory deposit provision requires the deposit of two copies or phonorecords [17 U.S.C. §407(a)(1)], but grants the Copyright Office authority to reduce that number to one by regulation. Pursuant to this authority, the proposed qualified exemption will state that only a single copy or phonorecord of a demanded work is required. Upon receipt of the single copy of a demanded work, the Library may allow simultaneous access by two on-site users. This achieves the statute’s goal of providing two copies of a published work to the Library of Congress in a more efficient and flexible manner.

Published electronic works available only online will be deposited only pursuant to a demand issued by the Copyright Office, under the authority of section 407(d) of Title 17. The Library intends to phase in its collection of online-only works on a category-by-category basis. The initial revision of §202.19(c)(5) proposed in this notice identifies “electronic serials” as being exempt but subject to demand, because that is the first category of online-only works that the Library intends to collect. As the Library expands its collection of online-only works to other categories, these new categories would be identified in §202.19(c)(5) as subject to demand, following a notice and comment period.

ReferencesEdit

  1. 17 U.S.C. §407.
  2. Id. §407(d).
  3. Id. §407(c).
  4. Id. §704.
  5. Id. §408(b).
  6. Id. §704(d).
  7. Id. §408(a).
  8. 17 U.S.C. §407(c).
  9. 37 C.F.R. 202.19(c)(5) (1978).
  10. 54 Fed. Reg. 42295 (Oct. 16, 1989). The 1989 rulemaking did not suggest that electronic online-only works should also be subject to mandatory deposit, and there is no evidence that such an outcome was contemplated. In fact at that time, the Library did not possess the technological means of ingesting copies of online-only works.
  11. 56 Fed. Reg. 47402 (Sept. 19, 1991).
  12. Copyright Office, Mandatory Deposit of Published Electronic Works Available Only Online, 74 Fed. Reg. 34286 (July 15, 2009).
  13. Note that the Library's current Best Edition Statement for "Works Existing in More Than One Medium" does not currently list electronic formats. See, e.g., 37 C.F.R. 202.20(b)(1) ("For purposes of this section, if a work is first published in both hard copy, i.e., in a physically tangible format, and also in an electronic format, the current Library of Congress Best Edition Statement requirements pertaining to the hard copy format apply.") Nevertheless, the Library of Congress retains the authority to determine what constitutes "best edition" and it may decide at a future time that, when a particular work is published in both print and electronic editions, the electronic edition is the "best edition" for purposes of mandatory deposit.
  14. H.R. Rep. No. 94-1476, at 150 (1976); S. Rep. No. 94-473, at 133 (1975).

See also Edit

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