same act of 1865 construing the word "book" provided that only such subsequent editions as contained additional matter need be deposited at the Library; nor need any book "not the subject of copyright" be thus deposited. (§ 4.) An act of 1867 (14 Stat. 395; 39th Cong., 2d Sess., c. 43) gave the Librarian a penalty action against the proprietor of any copyrighted work who failed to make the deposit at the Library within 1 month of publication.

1. Summary

C. LEGISLATION 1870-1905

Early in this period, the clerks of court were displaced as agencies of registration and deposit. Administration of the copyright system was centralized in the Librarian of Congress; the Library became the sole place of registry and the sole place of deposit. Official publication of copyright entries was required by legislation of 1891. In 1897 the office of the Register of Copyrights was created within the Library of Congress. By the end of this period, registration of the title and deposit of two copies of copyrighted works were required to be accomplished in the typical case on or before the day of publication. The device of compelling deposit for the benefit of the Library by demand, with forfeiture of copyright for refusal of the demand, was abandoned, for deposit, now to be made only at the Library, was a condition of securing copyright. The notice requirement was continued. Renewal of copyright still required a repetition of formalities, and in addition publication in newspapers. New formalities were prescribed in connection with certain foreign works to which copyright was extended. Recordation of assignments was continued. 2. The legislation in detail

Legislation of 1870 (16 Stat. 212; 41st Cong., 2d Sess., c. 230, §§ 85-111) transferred records and responsibility from the clerks of court and the Interior Department to the Librarian of Congress. (§§ 85, 109-110.) A major part of the 1870 legislation was amalgamated into the Revised Statutes, 1873, the relevant provisions of which may be summarized as follows:

Section 4952 of the Revised Statutes extended copyright to an enlarged group of works. Copyright included the privilege of reserving dramatization and translation rights in works amenable to such transformation, and in the case of dramatic compositions was to comprise the right of public performance (§ 4952).28 The original term of copyright ran for 28 years from the time of registration (§ 4953), which was to be accomplished by delivering to the Librarian, before publication, a printed copy of the title of the work (or in certain cases a description of the work) (§ 4956). Further, two copies of the work (or in some cases a prescribed substitute) must be deposited at the Library within 10 days from publication (§ 4956). The Librarian was to record the name of the author and other details in a record book (§ 4957).29 The requirements of both registration and deposit

23 The language of Rev. Stat. § 4952 regarding "reservation" of dramatization and translation rights was eliminated in the 1891 amendments of the Revised Statutes, 26 Stat. 1106. As amended, the section stated that authors should have the "exclusive right" to dramatize and translate.

The entry was to be as follows: "Library of Congress, to wit: Be it remembered that on the day of A.B., of hath deposited in this office the title or a book, (map, chart, or otherwise, as the case may be, or description of the article,) the title or description of which is in the following words, to wit: (here insert the title or description,) the right whereof he claims as author, (originator, or proprietor, as the case may be,) in conformity with the laws of the United States respecting copyrights. C.D., Librarian of Congress." (§ 4957)

were clearly expressed as conditions of securing copyright §(4956). Section 4959 restated the section 4956 requirement of post-publication deposit as a duty of the proprietor, and added a duty of depositing "every subsequent edition wherein any substantial changes shall be made." Section 4960 gave a penalty action to the Librarian for a failure to comply with section 4956 or 4959. A notice requirement was continued by section 4962: "No person shall maintain an action for the infringement of his copyright" unless he gave notice thereof "by inserting [a prescribed legend] 30 in the several copies of every edition published, on the title page or the page immediately following" (or in a variant way in the case of certain works). Although section 4962 thus spoke of notice as a prerequisite of maintaining an action, it appeared to operate as a condition of copyright, for the right to sue apparently depended on imprinting the notice of the first copies published. A renewal term of 14 years was given to the author alive at the expiration of the initial term, or if the author was dead then to his surviving widow or children, upon registering the title a second time "and complying with all other regulations in regard to original copyrights" within 6 months before such expiration and causing a copy of the record to be published in a newspaper for 4 weeks within 2 months of the date of renewal (§ 4954).

Copyright was stated to be assignable by instrument in writing, "and such assignment shall be recorded in the office of the Librarian of Congress within 60 days after its execution," otherwise it was void against a subsequent purchaser or mortgagee for value without notice ($4955).

The actions which could be maintained by a proprietor of a copyrighted work in case of infringement were spelled out in some detail (§§ 4964-4966).

Fees for recording, giving certified copies of entries, etc., were restated and the Librarian was charged with making an annual report to Congress of copyright entries (§§ 4958, 4951).

An act of 1874 (18 Stat. 78; 43d Cong., 1st Sess., c. 301) dealt with the form of the prescribed notice (§ 1).31 It also vested administration of the copyrighting of commercial prints and labels in the Patent Office (§ 3). The notice for articles of pottery and the like was dealt with in an act of 1882 (22 Stat. 181; 47th Cong., 1st Sess., c. 366).

The act of 1891 (26 Stat. 1106; 51st Cong., 2d Sess., c. 565) was primarily designed to extend copyright protection to foreigners (§ 13). A "manufacturing clause" with attendant formalities here made its appearance (§ 3, amending Rev. Stat. § 4956). For purposes of policing imports and foreign mail, the act provided for transmittal of copyright information to the Treasury Department; it further directed the printing and distribution of catalogs by Treasury (§ 4, amending Rev. Stat. § 4958). There were two significant general changes of the law: (i) registration (i.e., delivery of the printed title or description of the work to the Librarian) must take place "on or before the day of publication in this or any foreign country"; (ii) deposit (delivery to the Librarian of the two copies of the work or substitute) must take place

30 The notice was as follows: "Entered according to act of Congress, in the year

in the office of the Librarian of Congress, at Washington." (§ 4962)

The permitted forms were: "Entered according to act of Congress, in the year

--, by A. B.,

by

A. B., in the office of the Librarian of Congress, at Washington;' or, at his option, the word 'Copyright,' together with the year the copyright was entered, and the name of the party by whom it was taken out; thus 'Copyright, 18.---, by A. B.'" (§ 1)

"not later than the day of publication thereof in this or any foreign country" (§ 3, amending Rev. Stat. § 4956).

To relieve against loss of copyright occasioned by late deposit of works, an act of March 3, 1893 (27 Stat. 743; 52d Cong., 2d Sess., c. 215) restored rights if deposit, although tardy, had been accomplished before March 1, 1893. Here is an indication that stiff formal requirements were causing trouble.

In 1897, civil remedies and criminal penalties for unlawful public performance of dramatic and musical compositions were laid down (29 Stat. 481; 54th Cong., 2d Sess., c. 4, amending Rev. Stat. § 4966); but there was no change of formalities in regard to these works. In the same year the office of the Register of Copyrights was created (29 Stat. 545; 54th Cong., 2d Sess., c. 265, "Copyright Department"). By an act of 1904 (33 Stat. 4; 58th Cong., 2d Sess., c. 2) a kind of ad interim protection was accorded to works intended for exhibition at the Louisiana Purchase Exposition which had been previously published abroad "but not registered for copyright protection in the U.S. copyright office": upon complying with special formalities the proprietor would secure American protection for 2 years; and he might thereafter on certain conditions obtain extended protection. A statute of 1905 (33 Stat. 1000; 58th Cong., 3d Sess., c. 1432, amending Rev. Stat. § 4952) provided special formalities by which American copyright could be secured for books first published abroad.

D. THE ACT OF 1909

1. Dissatisfaction with the pre-1909 scheme; the logic of the 1909 revision After more than a century of national regulation of copyright, the old pattern was unbroken: securing copyright depended on compli ance, and exact compliance, with formalities-notice, registration, and deposit. But whereas some space of time after publication had been allowed in the legislation up to 1891 for accomplishing the last formality of deposit, this grace period had now been eliminated. Not only was it fatal to commence publication without notice; both registration and deposit must be accomplished by the date of publication. In his report to the Librarian of Congress of December 1, 1903, the Register of Copyrights, Mr. Thorvald Solberg, left no doubt of his dislike of this scheme, which could punish trifling omissions with loss of substantial rights. Mr. Solberg said:

** [A] system has gradually grown up under which valuable literary rights have come to depend upon exact compliance with these statutory formalities which have no relation to the equitable rights involved, and the question may very well be raised whether this condition should be continued. *** 32 Mr. Solberg became the leading spirit in the attempt to rationalize the formalities; many felt as he did, but perhaps none as keenly.

The history of the 1909 revision will not be detailed here. By way of rough summary of the views held during the period of revision, we may say: Continuance of a notice requirement, to serve the purpose of warning copyists, was pretty well assumed. Registration, in the sense of a public record of basic information furnished by the applicant more or less in conjunction with deposit, was generally although not universally thought to be advisable and important. The minutes of

"Report on Copyright Legislation by the Register of Copyrights (1904), at p. 25.

33

the Conference of 1905 and 1906 indeed contain a rather full statement of the advantages that can be claimed for a system of registration.3 Recordation of assignments was also apparently assumed to be valuable. Most important, there was general agreement with Mr. Solberg's view that formalities should in some way be softened to avoid unintended loss of rights.

34

Any critical examination of the copyright scheme just prior to 1909 must point to the elimination of a requirement of newspaper publication (an incident of securing renewal, but not original copyright). This was abandoned in the 1909 act. Nor could much sense be made of the separation of the requirement of delivering a copy of the title of a work from the requirement of delivering copies of the work itself, especially as both operations came to rest in the same place, the Copyright Office. Mr. Solberg's 1903 report had spoken convincingly to this point. The 1909 act correlated the application for registration with the deposit of copies, although not with perfect clarity. The further question was when deposit (to which the application for registration would be ancillary) was to be carried out. Some leeway, it was thought, should be allowed for completion of this process following publication of the work. At one stage it was proposed that a definite time, following publication, be set within which deposit should be accomplished. This was supplanted by the idea of a looser postpublication period: hence the words "promptly deposited" appearing in section 13 35 of the act.

If deposit with accompanying registration could be deferred for some indeterminate time after publication, the start of a term of copyright protection for published works, especially a term measured by a period in gross, would naturally be the date of publication. And if a notice requirement was to be continued, then it was plausible to provide that copyright should be invested upon publication with notice (even though this recreated the old danger of unintended forfeiture by publication without notice). The legislation followed this line in section 10.

If deposit-registration was not to be a condition of investing copyright, the question still remained as to how this requirement should be otherwise policed. In an early bill setting a specific period of time following publication for accomplishing the formality, it was provided that after expiration of the period no action could be brought for infringement of a work until deposited and registered, and failure to make deposit on the Register's demand was punished by fine.36 There was no suggestion here that a copyright could be irrevocably lost for failure to deposit or register. In a later bill calling for "prompt" deposit the no-action provision was continued and, further, failure to

13 References were made to registration as an aid to the protection of unpublished works, as a means of determining date of publication and copyright term, as protection against "innocent" infringement, as a way of tracing title, as a means of proof through a prima facie provision, as contributing to the creation of a place of record where the public could go for information.

34 Report, supra note 32, at 30-31. Mr. Solberg notes that many titles were filed in advance of publica tion and, further, that many titles were filed "which are not the titles of works printed or even written, but merely contemplated works, many of which are never produced." The latter practice was of course an abuse. But it appears that prepublication filing of the title was in some cases resorted to in a rather vague effort to fortify the protection of works "produced" but unpublished in the sense of being in unprinted manuscript-e.g. dramatic works. Section 12 of the present act arose in part at least as a means of meeting this problem of securing better protection of unpublished works.

35 Here, and hereafter, in referring to sections of the 1909 act we use for convenience, unless otherwise noted, the parallel Section of the present Act. Thus the Section 13 referred to in the text was Section 12 of the 1909 Act.

36 S. 6330, H.R. 19853, May 31, 1906, 59th Cong., 1st Sess.

comply with the Register's demand worked a loss of copyright.37 But the relevant House report stated: "Not until he [the proprietor] has intentionally declined to deposit in compliance with this written demand is his copyright forfeited." 38 The final text of the act of 1909 combines the no-action provision with a provision for loss of copyright and a fine in case of failure to deposit after Register's demand (§§ 13, 14). Infelicities of drafting as well as a dubious statement in the House and Senate reports 39 on the final bill gave rise to the question whether late deposit could in itself, apart from refusal to comply with the Register's demand, in effect void a copyright previously invested through publication with notice by rendering the copyright entirely nonactionable (or impair the copyright to the extent of preventing suits for infringement antedating the late deposit). This was the question in Washingtonian Pub. Co. v. Pearson, 306 U.S. 30 (1939), analyzed below. The decision favorable to the copyright seems to derive some support from an understanding examination of the evolution of the act of 1909.

2. Terms of the 1909 act

The 1909 act restated the subjects of copyright and the scope of protection accorded to them.40 The manner of securing copyright for a published work was described thus: "Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title; ***” (§ 10). With respect to deposit of copies of works copyrighted under section 10, the act said: "After copyright has been secured by publication of the work with the notice of copyright ***, there shall be promptly deposited in the copyright office *** two complete copies of the best edition thereof then published, * ́* (§ 13)41 (which copies must in certain cases comply with the provisions for domsetic manufacture and be accompanied by an affidavit attesting to such manufacture, §§ 13, 16, 17).42 As to registration: "Such person" (referring somewhat ambiguously to section 10) "may obtain registration of his claim to copyright by complying with the provisions of this title, including the deposit of copies, and upon such compliance the Register of Copyrights shall issue to him the certificates provided for in section 209 of this title" (§ 11). A "claim of copyright" (in practice an application for registration) is to accompany the deposit (§ 13). "[W]henever deposit has been made in the copyright office of a copy of any work under the provisions of this title he [the Register] shall make entry thereof" (§ 208), and "In the case of each entry the person recorded as the claimant *** shall be entitled to a certificate of

registration ***”
*" (§ 209).

The application for registration must specify the "class" in which the work belongs (§ 5), but further details of the application were not prescribed; rather the Register, subject to the approval of the Librarian, was authorized "to make rules and regulations for the regis

37 S. 8190, H.R. 25133, January 29, 1907, 59th Cong., 2d Sess.

23 H.R. REP. NO. 7083, January 30, 1907, to accompany H.R. 25133, p. 8.

H.R. REP. NO. 2222, February 22, 1909, 60th Cong., 2d Sess., to accompany H. R. 28192, which is the same as S. REP. NO. 1108, March 1, 1909, 60th Cong., 2d Sess., to accompany the companion bill, S. 9440 The statement referred to is the one which speaks of formalities other than notice as "conditions subsequent" (see infra, discussion of Black, J.'s dissent in the Washington case).

See especially § 1 (exclusive rights as to copyrighted works); § 5 (classification of works for registration If the work was a contribution to a periodical for which special registration was requested, one copy the pertinent issue could be deposited. 12 of the 1909 act (prior to amendment).

See also 18 (making false affidavit).

of