3. OMISSION OF NAME OR DATE

Where, according to subsection (c) of section 405, "copies or phonorecords publicly distributed by authority of the copyright owner contain no name or no date that could reasonably be considered a part of the notice," the result is the same as if the notice had been omitted entirely and the work "is governed by the provisions of section 404." The bill contains no requirement that the elements of the notice "accompany" one another, and section 405 (c) recognizes that, even though a name or date may be separated to some extent from the rest of the notice, it would be adequate if the elements could reasonably be read together. This would avoid the danger, now a real one under the present law, that a notice would be held inadequate simply because its elements are not contiguous. On the other hand, where the elements are too widely separated to be related to each other, or where other names or dates would create uncertainty as to which are intended as a part of the notice, the case would have to be treated as if the notice had been omitted altogether.

Chapter 6

DEPOSIT AND REGISTRATION

A. IN GENERAL

The 1961 Report treated the problems of deposit of copies and phonorecords for the Library of Congress and of registration of claims to copyright as two closely related but different things. The general approach of its proposals was to establish a mandatory deposit system which would preserve the right of the Library of Congress to obtain those copies and phonorecords needed for its collections, but without requiring deposit of unneeded and unwanted material. The related provisions on registration would not (except for works published without notice) represent a condition of copyright, but compliance with them would be required for the recovery of certain remedies in cases of infringement. Since, under the Report's recommendations, deposit for the Library could be coupled with deposit for purposes of copyright registration, the expectation was that most copyright owners would register their claims at the time they deposit their copies or phonorecords, but under no circumstances would they be required to do so.

These proposals caused relatively little controversy or adverse criticism. With a few changes in details they have been adopted in the 1965 bill.

B. DEPOSIT FOR THE LIBRARY OF CONGRESS

With respect to deposit, section 406 of the bill follows almost all of the Report's recommendations by providing that:

(1) within three months after publication of a work with notice of copyright in the United States, two copies or phonorecords of the work must be deposited in the Copyright Office;

(2) the Register of Copyrights may exempt certain categories of material from these requirements; and

(3) if deposit is not made, the Register may demand it, and the penalty for failure to comply would be the imposition of a fine consisting of a specific amount plus the cost of the copies or records.

The principal issue raised by this provision was whether, as under section 14 of the present statute, failure to comply with a demand for deposit should result not only in a fine but also in the complete loss of copyright. The general reaction on this question, which the Report

deliberately left open, was very much opposed to any proposal under which failure to deposit would invalidate the copyright. We agree that a realistic fine is an adequate sanction for this purpose and that, especially under a system of divisible copyright, it would be unnecessarily harsh to destroy all rights under a copyright simply because someone ignored a demand for deposit. Section 406 (a) therefore states explicitly that "[t]his deposit is not a condition of copyright protection."

Note that the requirements of section 406 apply only to works that have been published in the United States. This would include works first published abroad if and when publication in the United States takes place. The basic requirement is for the deposit of "two complete copies of the best edition" or, "if the work is a sound recording, two complete phonorecords of the best edition, The term "best edition," which has caused problems under the present law because of uncertainty as to its meaning, is defined in section 101 as "the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes." The intention here is to make clear that the Library of Congress is entitled to receive, out of the various editions published in the United States up to the time of deposit, copies or phonorecords of the edition that the Library itself believes best fits its own needs, regardless of whether those copies or records happen to be the most expensive, largest, rarest, etc., in existence. However, once the deposit requirement for a particular work has been fulfilled, the Library has no further claim on future editions unless, of course, they represent newly copyrightable "compilations" or "derivative works" under

section 103.

In the case of sound recordings, the deposit requirement extends not only to "two complete phonorecords of the best edition," but also to "any printed or other visually perceptible material published with such phonorecords." Under this provision the deposit requirement would ordinarily not be satisfied merely by depositing two records or tapes, for example. Most phonorecords are publicly distributed in a sleeve or album container including text or pictorial material or both, and many are also accompanied by leaflets or booklets including notes, pictorial material, essays, librettos, etc. In these cases section 406 (a) (2) would require deposit of the entire audiovisual "package" as it is distributed to the public.

Deposits under section 406 would be made in the Copyright Office, but "for the use or disposition of the Library of Congress." Subsection (b) provides for the issuance, upon request and payment of a fee, of a receipt for the deposit, although this receipt would serve no purpose if the required deposit were made as a part of copyright registration under section 407 (b), for which a certificate would be issued.