DEPOSIT OF COPYRIGHTED WORKS

INTRODUCTION

The deposit of copies of copyrighted works serves two purposes: to identify the copyrighted work in connection with copyright registration, and to provide copies for the use of the Library of Congress. The deposit of copies for the first purpose has been an integral part of the U.S. copyright system since its beginning in 1790. Deposit for the Library of Congress was inaugurated in 1846. Before 1870 the deposit for each purpose was made separately. Since the administration of the registry system was placed in the Library of Congress in 1870, a single deposit has served both purposes.

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Prof. Benjamin Kaplan in his study "The Registration of Copyright" has dealt extensively with the general aspects of deposit in relation to copyright registration. The present study is concerned more directly with the deposit system as a means of providing copies of works for the Library of Congress, and will also consider some of the specific questions concerning deposits in relation to registration.

I. DEVELOPMENT of LIBRARY DEPOSIT SYSTEMS in GENERAL

The first law requiring the deposit of books and other cultural materials in a library for the purpose of preserving the cultural achievements of a nation was the Ordonnance de Montpellier, 1537, promulgated by Francis I of France. As the idea was adopted in other European states and developed in France, it was often found expedient to embody it in the laws on control of the press or to combine it with the granting of printing privileges, to insure better compliance with the deposit provisions as well as surveillance of the works being published. The first real deposit law in England was incorporated in the Licensing Act of 1662.3

The copyright laws which evolved out of the old system of granting printing privileges very often contained provision for deposit of copies which might be used both as record evidence of the work copyrighted and for the enrichment of libraries. This system of deposits

"Copyright Law Revision Study No. 17" [in the present series of Committee Prints].

The law applied to all materials then published, including imported foreign works which, however were purchased. Its only intent was to collect the works in one place. The penalty for noncompliance was confiscation of the whole edition. Because of the difficulty of communication, however, it was not easy to enforce such laws.

13 and 14 CAR. II, c. 33. Library deposit in England began at the Bodleian Library at Oxford in 1611 under a perpetual covenant made between Sir Thomas Bodley and the officials of the Stationers' Co. It was a type of voluntary deposit. Registrations of titles had been made at Stationers' Hall since 1557 but no copies were deposited. The main body of printers saw no advantage to deposit and complied reluctantly or not at all. There is some evidence that the efforts of the Bodleian to enforce this deposit agreement resulted in the provision for deposit of copies in the Star Chamber Decree of July 11, 1637, and the Licensing Acts, cf. PARTRIDGE, HISTORY OF THE LEGAL DEPOSIT OF POOKS THROUGHOUT THE BRITISH EMPIRE (1938), which is a major source of the historical material on English deposit in this paper.

As, for example, in the Statute of Anne, 1710 (8 ANNE ch. 19). The French Copyright Law of 1793 required deposit, as a condition of enforcing copyright, at the Bibliothèque Nationale, until 1925. But under the ordonnance of Oct. 24, 1814, the deposit was integrated with that required under the various press laws which was the deposit actively enforced.

for both purposes is still retained in some countries that require copyright registration. However, in 1908 the Berne Union, to which most European nations are parties, abandoned compulsory formalities, including registration and deposit, in connection with copyright. Thereafter the countries of the Berne Union generally adopted special deposit laws (dépôt légal to provide for the enrichment of libraries independently of copyright. With similar effect, the recent laws creating national libraries in Canada and Japan contain the provision for deposit in those countries. In Switzerland an agreement between the publishers and the national library provides for deposit on a voluntary basis (dépôt gratuit)."

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In the broad sense of the term any deposit required by law may be termed "legal deposit" whether the law is a press law, a copyright law, or a law specifically drawn to benefit libraries. A true "copyright deposit," however, is limited to the deposit of works protected under the copyright law and deposited initially for copyright registration, though the works may also be used to enrich a library or libraries. "Legal deposit" is usually understood as referring to the required deposit of all works of certain types for the benefit of libraries without regard to copyright, and it is used herein in that sense.

Copyright deposits by their nature are likely to include more types of material than legal deposits because works of all categories granted protection are subject to copyright deposit, and will be deposited to some extent, whether they are works ordinarily collected by libraries or not. On the other hand, for certain categories of works copyright deposit will bring in a smaller percentage of all the works published, if many works of a particular category are not copyrighted. A notable example is newspapers, all of which are generally required to be deposited under legal deposit systems but most of which are not copyrighted in the United States. Copyright deposits used to enrich a library must be supplemented by other arrangements for acquiring noncopyrighted works, such as certain types of Government publications and works which are in the public domain. Copyright deposit may be enforcible by provisions afffecting the exercise of copyright as well as by a fine. The obligation to make copyright deposit normally rests on the author or copyright proprietor.

Legal deposit systems, although potentially capable of bringing into a library all works published domestically which in any way contribute to the national intellectual heritage, are likely to be more severely tailored to the needs and facilities of the libraries which they are to enrich, because there usually exists by law or practice an obligation to preserve the deposits permanently. The amount of material of little use to libraries which may be placed in the collections under a legal deposit law is infinitely greater than under a copyright law.

The countries retaining combined deposit include Argentina, Bolivia, Brazil, Colombia, Costa Rica, Cuba, Ecuador, Haiti, Nicaragua, Peru, the Philippines, Portugal, Spain, the United States, Uruguay, and Venezuela. The copyright deposit required in Chile, Nationalist China, and Mexico is apparently for purposes of record alone.

For example, the special-deposit laws in France and Italy which are discussed in pt. II below. British Commonwealth countries, except the United Kingdom and India, have not yet revised their copyright laws based on the British Act of 1911. Provisions for the library deposit are still included in the copyright law although deposit is not tied to copyright registration. With adjustments for local conditions the provisions follow the pattern of the Act of 1911. Australia and New Zealand limit the deposit to works under copyright; other Commonwealth countries require the deposit of all works published.

National Library Act, 1952 (11). If deposit is made under the Copyright Act it is accepted as com pliance with the Library Act. The "Report on Copyright of the Canadian Royal Commission," 1957 does not discuss deposit.

National diet library law, Feb. 9, 1948 (Law No. 5), Arts. 24, 25.

For discussion see ch. II(d) infra.

At present, in practice, the obligation of legal deposit is usually limited to printed or near-print publications (including microfilm). Moreover, most countries, either specifically by law or by not enforcing compliance, exempt certain types of marginal materials such as commercial publications, works printed for personal use, and certain kinds of administrative documents. The obligation to make legal deposit is most often laid on the printer to insure comprehensiveness, but is sometimes laid on the publisher. The penalty for failure to deposit is usually a fine, which in many cases is so small that, in practice, libraries buy the work rather than take legal action. Under either system most laws specify that the works deposited. must be of a certain physical standard. If several copies are demanded, or if the best edition is a limited de luxe edition, some relaxation of the deposit requirements is often made. The number of copies which are required varies considerably from country to country regardless of the type of law, and may also vary according to the category of work. Most laws specify a time limit within which deposit should be made and some set a limit to the time allowed the library to enforce compliance. Practice varies as to whether the depositor or the depository should pay postage fees or whether the franking privilege is granted.

It is not possible to say positively that the practical results in terms of library acquisitions under a legal deposit act are necessarily more complete than under a copyright law, because it is impossible to get any kind of reliable figures on which to base comparisons of possible receipts under the two systems. In the last analysis the type of law employed in the various countries seems to be that which best suits the needs and philosophy of government and best conforms to local publishing conditions, Berne Union countries will not generally use a true copyright deposit law because they consider registration and deposit unjustifiable as a condition attached to the exercise of the rights of an author. The next chapter surveys the deposit laws in representative Berne Union countries and in the Soviet Union.

II. CURRENT LIBRARY DEPOSIT SYSTEMS IN SELECTED COUNTRIES

A. THE UNITED KINGDOM

1. Historical background 10

From 1709 to 1956 provisions for deposit in several libraries were included in the various copyright acts. Although from the first the copies were sent to Stationers' Hall as the central distribution depot, they were not apparently used in making the copyright entries in the Stationers' Register. That the library deposit was divorced from copyright registration was settled by the decision in 1812 in Cambridge University v. Bryer (16 East 317), that

11 of the best and largest copies of every new work and reprint with additions were in future to be deposited at Stationers' Hall for the use of the libraries whether the work be registered or not.

The number of copies required was reduced to five in 1836. In 1850 the keeper of printed books at the British Museum, Anthony Panizzi, began a series of successful legal actions against recalcitrant pub

10 PARTRIDGE, THE HISTORY OF THE LEGAL DEPOSIT OF BOOKS (1938) is the basic text for this material.

lishers to secure current and retrospective compliance. Since then compliance with the law has been satisfactory and, on the whole, willing, although the publishers during the revision of the law in 1911 " and again in 1951 argued to restrict the types of works to be deposited in libraries other than the British Museum.

The Copyright Committee in 1951 took testimony on deposit for the libraries, because it had been so long a part of the copyright law, but questioned whether the provision should not be in a separate statute since it was in no way connected with copyright. 12 The Committee felt that the arguments of the depository libraries for the continuance of the privilege were justified historically, that the dispersal among several libraries of complete sets of published works was of great cultural importance to the country, and an act of prudence besides. The publishers' contention that the financial burden of deposit lay unequally among publishers was accepted, but it was noted. that the obligation was of such long standing that by now it must have become part of the normal expenses of conducting a publishing business. The Committee felt it was outside its province to extend the deposit obligation to motion pictures and phonograph records as requested by the British Film Institute and the British Institute of Recorded Sound, Ltd., for the purpose of establishing national archives in those fields.

The new copyright bill which became the Act of 1956 omitted the sections of the 1911 Act on library deposits. Efforts were made in Parliamentary debate to restore these provisions and to include deposit of films and records. The Government spokesman refused to support these amendments and proposed that sections 15 and 34 of the Copyright Act of 1911 remain in force until Parliament should review the whole question of deposit on its merits.13 Accordingly, while no provisions for library deposits were included in the Copyright Act of 1956, those sections of the Act of 1911 remain the law for deposit in the United Kingdom.

2. Operation of the deposit system

Six libraries benefit under section 15 of the Copyright Act of 1911the British Museum, the Bodleian Library at Oxford, the University Library at Cambridge, the Library of Trinity College (Dublin), the National Library of Scotland, and the National Library of Wales. Delivery by the publisher of all "books" to the British Museum is obligatory within 1 month of publication at the publisher's expense; 14 delivery to the other libraries is obligatory only on receipt. of a written demand issued within a year of publication.15 The term "book" is defined as every part or division of a book, pamphlet, sheet of letter press, sheet of music, map, plan, chart, or table separately

11 The National Library of Wales (established 1907) was added as a depository in 1911 on a limited basis (15(5)). Cf. National Library of Wales (Delivery of Books) Regulations, 1924, amended 1956 (S.I. 1956, No. 1978). 12 Report of the Copyright Committee 1951, pp. 22-29 (1952).

13 See THE BOOKSELLER, pp. 800, 801 (Aug. 11, 1956), and pp. 1517, 1518 (Nov. 3, 1956).

14 The Copyright Receipt Office is a unit of the British Museum which receives, records, issues receipts, and carries on compliance activities for materials received under the Copyright Act. The Office has no real connection with copyright as such but often receives inquiries on copyright problems.

15 Delivery to these libraries (except Wales) is to a central depot maintained cooperatively in London to collect, distribute, and claim the deposit. Most trade publishers deliver automatically. For efficiency of operation the claims issued are usually for all four libraries and they all join in any legal action taken. Titles collected are somewhat more selective than at the British Museum. The system is reported to work very satisfactorily.