DEPOSIT REQUIREMENT

The maintenance of the present deposit requirement and the possible strengthening of certain of its provisions should receive careful consideration from the point of view of the public as a reader in any legislation which may be considered.

In the Vestal bill H. R. 139 (72-1), sections 40-42 provide for an obligatory deposit in the copyright office within 30 days of publication of two complete copies of any work published in book or pamphlet form. This requirement appears to be made regardless of whether copyright is legally perfected and claimed for such work, and the provision is, therefore, not incidental to copyright.

Section 42 of the Vestal bill provides a fine of $100 for failure to make the required deposits. Since it appears that these deposit requirements of sections 40-42 of the Vestal bill are not incidental to copyright, they appear not to be made under the copyright section of the Constitution. The question, therefore, inevitably arises as to whether the provisions of section 40-42 of the Vestal bill are constitutional at all, and if so, under what provisions of the Constitution they can be held constitutional. It is believed that each of the sections 40-42 should be very carefully drawn in accordance with judicial interpretations of the sections of the Constitution other than the copyright section of the Constitution, under which it is believed they can be held constitutional. It would appear that this constitutional question should receive serious consideration by an able constitutional lawyer whose opinion should be incorporated in the record.

If the Vestal bill should become law and the existing deposit requirements of the 1909 copyright law were repealed, it seems quite possible that copyright proprietors would litigate the constitutionality of the provisions of section 40-42 of the Vestal bill, and if the provisions were held unconstitutional the Library of Congress and other Government libraries would have a very serious problem and expense to meet to secure any considerable part of the 262,690 articles deposited in the copyright office in the fiscal year 1931, taken as an example.

It is perhaps unnecessary to specifically point out that a penal provision of law such as section 42 of the Vestal bill must be strictly construed and specific constitutional authority found therefor.

As to the constitutional provisions regarding patents and copyrights it is of interest to note what the Supreme Court said in Motion Pictures Patents Co. v. Universal Co. (243 U. S. 502, 1917), where at page 511 the quotation is made from Kendall v. Winson (21 Howard 322):

It is undeniably true that the limited and temporary monopoly granted to inventors was never designed for their exclusive profit or advantage; the benefit to the public or community at large was another and doubtless the primary object in granting and securing that monopoly.

In the motion picture case the Supreme Court has also discussed further the compensation which the inventor is required to give to the public in return for the legal protection which he receives. It

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is believed that a similar doctrine applies to the subject of copyright and the compensation which the author or copyright proprietor owes the public.

It should be pointed out that the loss to the library of Congress and to the public from failure to have a valid deposit requirement of law would not be simply the publisher's price of the works now received which might not be received under proposed legislation. The actual expense would be something like double the publisher's price, if the effort were made to secure for the library anything like substantially the same material which they now receive, since it would be necessary to establish an entirely new organization to search for, purchase, and secure such material. In addition, the library now receives in the copyright deposit a considerable amount of material which is not on sale to the public at all; some of this material is of a nature which should be made available for public consultation and for the use of Government officials in the course of their duties.

FIXING STATUTORY MAXIMUM TIME FOR DEPOSIT

It is believed that if substantially the present copyright law is retained, section 12 thereof should be amended by inserting after the first sentence a provision "If the deposit herein provided for is not made within two years of the date of first publication, the copyright shall be void and registration shall be refused."

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Section 12 now provides that "there shall be promptly deposited *" but this word "promptly" has apparently not been judicially interpreted. It is believed that two years is a maximum time within which deposit should be made if any copyright rights are to be retained.

It is understood that it is the practice of the copyright office when articles are tendered for deposit which have been published for three or more years to notify the applicant that they are received “at the risk of the applicant," but registration is not refused. Apparently at the present time an applicant who registers and deposits even five years or more after publication, can maintain an infringement suit. It is believed that a definite time limit should be specifically fixed by law.

REPRINTS OF GOVERNMENT PUBLICATIONS

It is believed that section 7 of the present copyright law of 1909 if that law is retained, should be amended by inserting at the end a new sentence:

Any publication whereon copyright is claimed the major portion of which publication is substantially a reprint of a publication of the United States Government shall state in the published notice of claim upon which parts of such publication copyright is claimed and in default thereof or if the notice of claim covers matter therefore published in a publication of the United States Government, the copyright shall be void, and the register of copyrights shall refuse registration.

If the Vestal bill H. R. 139 is to receive serious consideration, a similar provision should be inserted in section 7 of the Vestal bill.

Various instances have been known in the past in which a Government publication of much popular value has been reproduced in toto

by an enterprising publisher by the photolithographic process, the publisher adding only a title-page but nevertheless claiming copyright on the entire work and securing registration therefor.

Radio publications of the Bureau of Standards, designated Circular 74 and Circular 121, are cases in point. When these cases were called to the attention of the register of copyrights at the time of publication he said that he had no statutory authority to refuse registration.

It is also believed that section 7 of the copyright law of 1909 and section 7 of the Vestal bill H. R. 139, if enacted, should be amended. to provide that no department or establishment of the United States or any officer or employee thereof shall incorporate in any publication of the Government any material covered by copyright, under an agreement with the proprietor of such copyright that the Government shall not distribute copies of such Government publication to the public. Such agreements have been entered into by some Government officials in the past, and at their request the Government Printing Office has refused to place a sales edition on sale, as is normally the course under the law. This practice is extremely undesirable and should be stopped. It is not believed that there is now any lawful authority for any Government official entering into such an agreement with the copyright proprietor, but any doubt on this point should be removed.

EMPLOYER AND EMPLOYEE

In the Vestal bill (H. R. 139) section 3 provides:

In the absence of agreement to the contrary where any work is created by an employee within the scope of his employment his employer shall, as author, be the owner of the copyright in such work

It is believed that this subject is not the proper subject of legislation in a copyright bill. There is serious doubt as to the constitutionality of such a provision. The respective rights of employer and employee are determined by contract, express or implied, and cases involving such rights are from time to time before the courts. The phrase "within the scope of his employment" often appear in such cases and have not by any means been uniformly judicially interpreted. It is believed that the legislation here proposed would further confuse rather than clarify the situation. This is entirely apart from the broader question as to whether in the absence of specific agreement the work of a creative worker should be the property of an employer, as a pair of shoes would be. It is believed that in the absence of specific agreement the creative worker should retain the title to his work. Legislation can not make an author of an employer who in fact is not the author of a work.

OBLIGATORY CLAIMING BY COPYRIGHT OFFICE

It is believed that section 13 of the copyright law of 1909 should be amended to provide:

That should the copies called for by section 12 of this act not be promptly deposited as herein provided, the register of copyrights shall at any time after the publication of the work

The only change suggested here is to change "may" to "shall." It is believed that by making this an entirely ministerial duty to be performed when failure to deposit is found by the register of copyrights, the effectiveness of this section will be materially increased.

COMPULSORY LICENSING AND WORKING

During the hearings the suggestion has been made that the copyright law should provide for compulsory licensing or working of a copyright. Some witnesses have stated that this is entirely unnecessary since the copyright proprietor will for business reasons keep his work in print if there is any demand whatever for it. This statement assumes that all copyright proprietors possess sound business judgment, which unfortunately is not always true. Mention may be made of an important scientific work by Carl Pearson, The Grammar of Science, which is now out of print and has been for years. The second edition of this was published in 1900, and one volume of a third edition was published in 1911. This was published in London. United States copyright protection was secured through compliance with the provisions of law, but the editions have been out of print for a long time. It is understood that an enterprising New York publisher, upon learning of the failure of the copyright proprietor to keep the work in print, made an arrangement with the proprietor for a limited term for an American reprint, but that, at the expiration of this period, the copyright proprietor arbitrarily and for no apparent good business reason refused to continue the arrangement and insisted that the work again go out of print. Under the present law there is no way of compelling a temperamental copyright proprietor either to keep a work in print himself or to allow some one else to reprint on a reasonable royalty basis.

RETENTION OF DEPOSITS IN COPYRIGHT OFFICE FOR ONE YEAR

It is believed that section 60 of the copyright law of 1909 should be amended by inserting a new sentence at the end:

And provided further, That except as provided in section 59 no articles received in Copyright Office as deposits shall be destroyed, returned to claimant, or otherwise disposed of, within one year of their deposit, and during the time that such articles remain in the Copyright Office they shall be filed and arranged in a manner convenient for inspection.

The purpose of this last suggested provision is to keep articles deposited available for inspection for some short period, instead of having them returned, as often happens now, within a few days after their receipt and before any member of the public has any opportunity whatever to inspect them. A further advantage of this provision will be to give librarians of other Government libraries in the District of Columbia a reasonable opportunity to inspect works received as deposits which the Library of Congress does not now desire to retain for its collection and which are generally returned to claimant very promptly.

Copyright deposits are public property. The law in general provides very stringent regulations as to the destruction of public property or its conversion to private uses. It is believed that the return of copyright deposits to claimants should be made only after there

has been ample time and opportunity for at least all interested representatives of the various branches of the Government to select from the deposits those which will be useful in their respective depart

ments.

Some important classes of material which are now ordinarily so returned to claimant include valuable trade catalogues, most looseleaf material, and correspondence courses. Particular mention may be made of a large and comprehensive Postal Digest, bound securely in loose-leaf form, which was published a few years ago by Otto Praegar, formerly Washington City postmaster and Second Assistant Postmaster General. Two copies of this publication, which sells for $25 a copy, were received as copyright deposits but were very promptly returned to claimant by the Copyright Office. As a result no copies of the work appear to be available for public consultation anywhere in the city, and this particular publication represents much of Mr. Praeger's experience of many years in the Postal Service.

If the Vestal bill (H. R. 139) should be enacted, section 50 of the Vestal bill should be amended along lines similar to those which have been suggested for section 60 of the 1909 law.

PRESENT DISPOSITION OF DEPOSITS AND RETURNS TO CLAIMANTS

The following statement is submitted showing the extent to which articles received as deposits in the Copyright Office are now returned" to claimants. It will be noted that of 262,690 articles deposited in the fiscal year ended June 30, 1931, 90,276 were returned to claimants. As has been stated, most of these articles were returned within a few days after their receipt in the Copyright Office. There were, therefore, approximately 35 per cent of the articles received which were returned to claimant. It is understood that the Copyright Office feels that it is necessary that the clerical operation operation of returning articles to claimants shall be an integral part of the clerical operation of receiving the deposit and registering the article, and that unless this is done the clerical work involved in filing the deposits and keeping them for a period of time will be very considerable.

The committee of three who come from the Library of Congress proper to the Copyright Office approximately daily can not be expected to recognize the value of every article received through deposit and not to return to claimant articles which may be of much public value. Certainly they can not be expected to be familiar with all the classes of material which would be wanted by all the Government libraries in the District of Columbia. There is no doubt that at the present time considerable material which would be very useful to other Government libraries in the District is returned to claimant before representatives of such other libraries have any opportunity to inspect the material. It is not a practical possibility for the librarians of most the libraries in the District to visit the Copyright Office more than once in two weeks, certainly not more than once a week.