Section 406 (c) provides: "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." This would allow the Librarian of Congress (who under section 702 must approve all regulations established by the Register of Copyrights) to exempt entire categories of works from the deposit requirements or to establish categories in which only one copy need be deposited. The purpose is to make this provision as flexible as possible, so that deposit need not be required where it fails to serve any purpose for the Library, and so that reasonable adjustments can be made to meet practical needs in special cases. We believe that this flexible approach would go some way toward meeting the concern expressed, for example, by the creators or producers of such copies as motion picture films, video tapes, and fine prints, who have argued that the deposit provision should contain special exemptions for them.

Where deposit has not been made as required in subsection (a) of section 406, subsection (d) empowers the Register of Copyrights to "make written demand for the required deposit on any of the persons obligated to make the deposit ***” **" These persons are specified in subsection (a) as "the owner of copyright or of the exclusive right of publication in a work." The bill allows a period of "three months after the demand is received" to make the deposit, and then "the person or persons on whom the demand was made" become liable:

(1) to a fine of not more than $250 for each work; and

(2) to pay to the Library of Congress the total retail price of the copies or phonorecords demanded, or, if no retail price has been fixed, the reasonable cost to the Library of Congress of acquiring them.

There may be cases where not only has "no retail price *** been fixed" but the copies or phonorecords are not available for sale on the open market. Perhaps the best examples are motion picture films and video tapes, which are publicly distributed under lease or similar arrangements. In these situations the last part of clause (2) is intended to cover the basic cost of duplicating the copies or phonorecords, plus a reasonable amount representing what it would have cost the Library to obtain them under its normal acquisitions procedures had they been available.

C. COPYRIGHT REGISTRATION

a. Permissive Registration

1. IN GENERAL

As recommended in the Report, section 407 (a) of the bill would permit voluntary registration to be made for any work, whether pub

lished or unpublished, "[a]t any time during the subsistence of copyright" in it. "[T]he owner of copyright or of any exclusive right in the work" could register the copyright claim in the Copyright Office by depositing the copies, phonorecords, or other material specified in section 407 and by submitting an application and fee. The last sentence of subsection (a) makes clear that registration is permissive; it provides that, "[s]ubject to the provisions of section 404 (a), such registration is not a condition of copyright protection." (Section 404 (a) requires, for continued protection of a work published without notice, that it be registered before or within 5 years after the omission.)

b. Deposit for Purposes of Registration

Section 407 (b) then sets forth the basic requirements for what "the material deposited for registration shall include:"

(1) in the case of an unpublished work, one complete copy or phonorecord; (2) in the case of a published work, two complete copies or phonorecords of the best edition;

(3) in the case of a work first published abroad, one complete copy or phonorecord as so published;

(4) in the case of a contribution to a collective work, one complete copy or phonorecord of the best edition of the collective work.

The 1961 Report had recommended retaining a provision in section 215 of the present statute which allows waiver of the registration fee for works published abroad if, within 6 months of first publication, two copies are deposited instead of the usual one copy. The present provision was enacted in 1949 to meet the serious postwar problems of transferring funds from foreign countries to the United States. However, while it undoubtedly served its purpose at the time, this waiver-of-fee option is administratively burdensome and appears to have outlived its usefulness. It has therefore been dropped from the bill.

The last sentence of section 407 (b) makes clear that, with respect to works published in the United States, a single deposit could be made to satisfy both the deposit requirements of section 406 and the registration requirements of section 407:

Copies or phonorecords deposited for the Library of Congress under section 406 may be used to satisfy the deposit provisions of this section, if they are accompanied by the prescribed application and fee, and by any additional identifying material that the Register may, by regulation, require.

However, to accomplish this dual purpose, the deposit and registration would have to be made at the same time. A deposit made without registration under section 406 could not later be converted into a deposit for purposes of registration under section 407 by submitting an application and fee; and additional deposit for purposes of regis

tration would have to be made. Moreover, taking account of the different purposes served by deposit for the Library of Congress and deposit for purposes of identifying the material covered by a copyright registration, the bill empowers the Register of Copyrights to issue regulations requiring the deposit of "additional identifying material" in certain of these cases.

c. Administrative Classification

The list of classes of copyrightable works in section 5 of the present statute was supposed to be for purposes of registration only, and the section actually contains language specifying that the list is not exhaustive and that "any error in classification" does not "invalidate or impair the copyright protection secured under this title." It is, therefore, ironic that some courts have treated the listing as being limitative with respect to the scope of copyright, and that the Copyright Office now finds the classification unrealistic and burdensome for administrative purposes.

The lesson we have learned is that the section setting forth the subject matter of copyright should be entirely separate from any practical administrative classifications, and that it is much better to leave the latter to regulations which can be readily changed to meet changing needs. Thus, in line with the recommendation of the Report, section 407 (c) provides that the "Register of Copyrights is authorized to specify by regulation the administrative classes into which works are to be placed for purposes of deposit and registration, ***” and adds: "This administrative classification of works has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title."

d. Optional Deposit

Section 407 (c) is also aimed at giving the Register as much administrative flexibility as possible in adjusting the type of material deposited to the needs of the registration system. He is empowered "to specify by regulation *** the nature of the copies or phonorecords to be deposited in the various classes specified" and to "require or permit, for particular classes, the deposit of identifying material instead of copies of phonorecords, the deposit of only one copy or phonorecord where two would normally be required, or a single registration for a group of related works."

Examples of cases where it would be preferable or desirable to have identifying material deposited instead of actual copies include not only jewelry, billboard posters, and unwieldy three-dimensional objects of various kinds, but also rare or extremely valuable copies which would be burdensome or impossible to deposit. Deposit of a single

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copy would be sufficient where the Library of Congress has no need for any copies and the only purpose of the deposit is identification; it would also be appropriate, for example, in the case of most motion pictures. Examples of cases where it might be appropriate to allow the grouping of related works under a single registration are the various editions or issues of a daily newspaper, a work published in serial installments, a group of photographs by one photographer, or a group of poems by a single author. The Register would also have discretion, for example, to permit deposit of phonorecords rather than notated copies of musical compositions, to require the deposit of "print-outs" of computer programs under certain circumstances, or to allow deposit of a copy of one part of a multi-volume encyclopedia for purposes of registration of a single contribution.

e. Corrections and Amplifications

The present Copyright Office Regulations (37 C.F.R. § 201.5 (a)) allow correction or cancellation of a completed registration only if "the facts therein stated" do not "agree with those supplied to the Office for the purpose of making such record"-in other words, if the Copyright Office itself made an error in registering the claim or failed to catch an error that should have been apparent during its examination of the claim. We believe that this basic rule should be continued, but that there is no need to set it out in the statute.

On the other hand, although the need arises quite often, the present statute has no provisions for correcting or amplifying the information given in a completed registration. The Copyright Office has adopted regulations and procedures to meet this problem but, because of the limitations imposed by the silence of the existing law, these are rather makeshift and unsatisfactory. Subsection (d) would give the Register authority to "establish, by regulation, formal procedures for the filing of an application for supplementary registration, to correct an error in a copyright registration or to amplify the information given in a registration." Under the subsection a "supplementary registration" would be subject to a fee, and would be required "clearly [to] identify the registration to be corrected or amplified."

Section 407 (d) also provides that "[t]he information contained in a supplementary registration augments but does not supersede that contained in the earlier registration." Under the Copyright Office's present practices the original registration is not expunged from the records, and on the basis of experience we believe it important that this result be continued. For one thing, the applications may be submitted by different persons, and the Copyright Office is in no position to decide which is right and which is wrong. Moreover, even if the

applications for original and supplementary registration both come from the same person, the facts of the original registration would have been cataloged and made a matter of public record; search reports and business dealings may have been based on them, and the effective date of the registration, which is important for several purposes under the bill, could be opened to question. We believe that it is far wiser to leave both the original and the "supplementary" registrations in the records, tied together by appropriate indexing and annotations, so that the public can see the whole picture.

f. Published Edition of Previously Registered Work

The last subsection of section 407, which provides that "[r]egistration for the first published edition of a work previously registered in unpublished form may be made even though the work as published is substantially the same as the unpublished version," probably needs some explanation. Under the present statute a work registered in unpublished form must be registered again when it is published, whether the published edition contains additional material or is essentially the same as the unpublished version. Under the bill there would be no need to make another registration for the published edition unless additional copyrightable material has been added so that the published version would be considered a "derivative work” or a "compilation." In fact, where the unpublished and published versions were essentially the same, there would be no statutory authority for another registration were it not for section 407 (e).

There are a number of cases in which a copyright owner would like to have a registration for his published edition, even though the work has already been registered in unpublished form. Moreover, under section 406 of the bill, he would be obliged to make deposit of copies or phonorecords of his edition if it is published in the United States. We believe that there are practical advantages in placing on public record the facts about a work in the form in which it actually was distributed to the public, and that subsection (e) is a justifiable exception to the ordinary rule against more than one registration for the same work.

2. PROCEDURES FOR REGISTRATION

a. Application for Registration

Section 408 of the bill is intended to implement the suggestion in the 1961 Report that "the specification of the information to be contained in applications, registration records, and certificates should be broad enough to elicit all relevant information, and flexible enough to fit