IV. DEPOSIT IN THE GENERAL REVISION BILLS OF 1924-4072 In the series of bills introduced between 1924 and 1940 to revise the copyright law generally, deposit continued to serve the two purposes of providing the basis for the registration of copyright claims, and of supplying the Library of Congress with copies of the works desired for its collections. Since a primary aim of the revision efforts was to make the U.S. law conform with the requirements for adherence to the Berne Union, works by foreign authors originating in Berne Union countries were exempted from mandatory formalities, including deposit of copies, at least until the work was republished in the United States. Some of the bills proposed to make registration voluntary for domestic works, but all of them required the deposit of domestic works for the Library. 76 74 Changes proposed in the various bills regarding deposit were of two kinds: (1) fundamental adjustments in the system of deposit, made necessary by proposed changes in the registration system, and (2) changes in specific details which experience had indicated to be desirable. Some of the deposit details are not of special significance today because they were tailored to situations in the Copyright Office and the Library of Congress which have since changed. The following discussion will review the deposit system proposed with the more important details, but some of the minor details will be omitted. The first group of general revision bills-the Dallinger,73 Perkins," Vestal,75 and 1932 Sirovich 7 bills, introduced between 1924 and 1932made registration voluntary for domestic (as well as foreign) works," but sought to insure that the Library of Congress would continue to receive copies of the domestic publications it desired for its collections. In general, these bills required the deposit for the Library of two copies of printed works published in the United States,78 with or without registration. For the voluntary registration of other works (which at that time were not generally collected by the Library) one copy or other identifying material was required. Except in the Perkins bill, a definite time limit was fixed for the Library deposit. Deposit for the Library was enforceable by a demand, and failure to deposit within a stated time after the demand was penalized by a fine but did not affect the copyright. The comments made at the various hearings on these four bills indicate the expectation that most published works would be registered under the voluntary system, so that deposits made for registration were expected to be the primary source of copies for the Library. The Dallinger and 1932 Sirovich bills therefore maintained the integrated deposit system under which the deposit for registration included the copies for the Library. This was supplemented in the 72 This pt. IV is based on material prepared by Borge Varmer, Attorney-Adviser of the Copyright Office. For a comprehensive discussion of the provisions of these bills concerning registration (and deposit as related thereto), see Kaplan, op. cit., note 1 supra, at 48-58. 73 H.R. 9137, 68th Cong., 1st Sess., §§ 14, 16, 26(a), 62 (1924). This was a redraft of an earlier Dallinger bill. Two or more versions of some of the other general revision bills cited below were also introduced; the last amended version only will be cited. 74 H.R. 11258, 68th Cong., 2d Sess., §§ 45-51 (1935). 75 II.R. 12549, 71st Cong., 2d Sess., §§ 15(b), 36, 38-43 (1930). This bill was passed by the House but died in the Senate. 76 H.R. 12425, 72d Cong., 1st Sess., §§ 8, 19, 36 (1932). "The Dallinger, Vestal, and 1932 Sirovich bills, however, would have limited the remedies available against an innocent infringer of a work that had not been registered. 78 The specification of the works to be deposited for the Library varied somewhat in the several bills. In general, an effort was made to exclude the classes of works which the Library was not at that time taking for its collection. COPYRIGHT LAW REVISION Dallinger bill by a provision that, if registration was not made within The approach in the Perkins and Vestal bills was somewhat different. One copy of a work (or other identifying matter) was to be deposited for voluntary registration, and a separate deposit of two copies of certain published works was to be made for the Library. The Perkins bill provided that the copy deposited for registration was to be returned to the registrant, but the Vestal bill omitted this provision. Both bills provided, however, that registration could be secured in conjunction with the Library deposit if that deposit was accompanied by an application for registration. Under the Perkins bill the Library deposit was to be made by the copyright owner "promptly" after publication; under the Vestal bill the Library deposit was to be made by the publisher within 30 days after publication. Under both bills the Librarian could demand the deposit, and upon default for 3 months thereafter the copyright owner (under Perkins) or the publisher (under Vestal) became liable to a fine of $100 and the retail price of the two copies. A second group of general revision bills-the Duffy," 1936 Sirovich,80 and Daly's bills, introduced between 1935 and 1937 82-retained the substance of the registration and deposit provisions of the 1909 act, with some minor changes in detail. Thus, registration was to be made "promptly" after publication (and was apparently thought to be mandatory) 83 for all copyrighted domestic works, and the deposit required in conjunction with registration included copies for the Library. The Register could demand deposit at any time, and default for 3 months thereafter subjected the copyright owner to a fine and voided the copyright. The last effort at general revision was the Thomas bill 84 of 1940, drafted by the Shotwell committee. It differed from all the previous bills in some important respects. Registration was to be wholly voluntary, and the deposit of copies was apparently designed to serve as a substitute for registration.85 The publisher of certain works published in the United States was required to deposit two copies for the 79 S. 3047, 74th Cong., 1st Sess. (1935). This bill amended some sections of the 1909 Act, leaving other sections unchanged. The deposit provisions of the 1909 Act were retained in general substance. Some changes of a relatively minor character in §§ 11 and 12 of the 1909 Act were in §§ 9 and 10 of the bill. This bill was passed by the Senate but died in the House. SH.R. 11420, 74th Cong., 2d Sess., §§ 11, 12, 13 (1936). 81 H.R. 5275, 75th Cong., 1st Sess. (1937). This bill was substantially like the Duffy bill in pertinent respects. 82 A number of other bills introduced between 1936 and 1940 were substantially identical with one of these three. Note that the decision in the Washingtonian case came later, in 1939. S. 3043, 76th Cong., 3d Sess., §§ 14, 15, 17 (1940). 85 This deposit was to be accompanied by an "application for deposit" and a small fee, and the Register was to make a record of the deposit, and issue a receipt containing specified copyright information (presumably to be given in the application). The receipt was to be prima facie evidence of the facts stated therein. 86 Library within 90 days. If deposit was not made within that time, the publisher would not be entitled to statutory damages for any infringement occurring after the 90 days and prior to deposit; s6 and the Register could demand, within 2 years after publication, that the publisher either make the deposit or file a relinquishment of the publication right, and upon failure to do either within 90 days after the demand the publisher would be subject to a penalty of $100. The Thomas bill also provided that registration could be obtained by filing an application therefor and paying the registration fee at the time of making the deposit or later. In the several hearings held on the various bills introduced between 1924 and 1936, and in the proceedings of the Shotwell committee that drafted the Thomas bill of 1940, there was considerable discussion and differences of opinion concerning the registration system, particularly as to its mandatory or voluntary character; but the deposit of copies for the Library was apparently accepted on all sides with little dis cussion. All of the various revision bills retained, in substance, the administrative provisions of the 1909 act (now secs. 208-214, 17 U.S.C.) concerning registration records and certificates and the disposition of deposits. The Thomas bill added new provisions requiring the Register to make records of deposits and to issue receipts for deposits containing specified information. A bill of an entirely different nature was introduced in 1937.87 Its intent was to create five regional national libraries at New York, Memphis, Chicago, Denver, and San Francisco. To benefit these libraries the copyright deposit was to be increased to 12 copies (2 to be supplied to each regional library, in addition to the 2 for the Library of Congress), unless the work to be deposited was published in less than 50 copies, or was priced at more than $50 per copy. No action was taken on this bill. V. OPERATION OF THE DEPOSIT SYSTEM SINCE 1909 88 It is desirable to assess the practical results of the operation of the deposit provisions of the present law in terms of the dual objectives of providing the basis for copyright registration and of enriching the collections of the Library of Congress. A statistical analysis has been prepared, by copyright class, of the registrations and deposit receipts, works transferred to the Library of Congress or other libraries, and the final disposition of the remaining articles. This analysis, covering a period of 56 years, July 1, 1901, through June 30, 1957 (fiscal years 1902-57), is presented in the table on the next page. The textual comment is intended to amplify and clarify the table and supply the rationale of past and present practice with respect to the disposition or retention of deposits. The 1909 copyright law, as discussed in chapter III, broke with the tradition that one copy of each deposit should be preserved throughout the copyright term as record evidence of what had been deposited. 88 The denial of statutory damages was extended to the owner of an unpublished work if he did not deposit a copy or manuscript of the unpublished work within 90 days after its completion. 87 H.R. 3699 and S. 1510, 75th Cong., 1st Sess. (1937); reintroduced as H.R. 1644, 76th Cong., 1st Sess. (1939) and H.R. 4486, 77th Cong., 1st Sess. (1941). This pt. V is based on material prepared by Joseph W. Rogers, Chief of the Cataloging Division, Copyright Office. Section 59 of that act (now sec. 213) authorizes the Librarian of Congress to select the deposited articles to be transferred to the Library collections, or to other Government libraries, or to be used by the Library for sale or exchange. Section 60 (now sec. 214) provides that the Librarian and the Register of Copyrights are jointly to determine which of the remaining articles it is desirable or useful to preserve in the permanent files of the Copyright Office, and which, after notice has been given, may be destroyed. A. RETENTION OF DEPOSITS IN THE COPYRIGHT OFFICE The general policy of the Copyright Office since 1909 may be stated to have been to retain custody of unpublished works throughout the entire 56 years of possible copyright protection, but not to retain published works rejected for Library use beyond a period determined largely by the space available for storage. At present this period is at least 3 years, which has been found to be the time in which interested persons most frequently seek to consult the deposits of published works. There are several exceptions to this general statement, however, as follows. As to unpublished works: The Copyright Office retains virtually complete files of unpublished dramas deposited from 1901 to date (except that a few are preserved in the Library's Rare Book Division). Two-dimensional works of art (some of which are photographs of original unpublished works) and lectures, sermons, and addresses are retained from 1909 to date; unpublished photographs and music from 1928 to date. In 1939, when the Copyright Office moved to the new annex building, all music deposits received prior to 1928 were transferred to the Library's Music Division, where they are preserved and are available for consultation, and since then some unpublished musical compositions of particular importance have regularly been so transferred. On occasion copyright proprietors have reclaimed deposits of unpublished works in all classes. Receipt and disposition of copies of works deposited for copyright registration, 1901-57 A 1 B E 1,057, 979 234, 108 234, 193 101,864 100,504 28, 592 8, 544, 920 1,246, 371 91, 458 105, 635 108, 396 4 131,062 2,665, 019 1,602, 289 825, 463 376, 852 163, 687 93, 521 108, 410 4,394 24, 173 6,718, 287 8,557, 896 1 The arrangement of classes in this table is in the order of the total numbers of copies deposited. 2 Prints and labels registered in the Patent Office and transferred to the Copyright Office in 1940. Includes 25,260 prints and labels registered in the Patent Office between 1930 and 1940 and transferred to the Copyright Office in 1940. 4 From 1914 to 1927 the number of articles recorded as deposited in classes L and M was 3 to 6 times the number of registrations for the same years. Apparently the count was based on reels rather than copies. Actual number of copies deposited would not have been greater than 60,000. See note 4. The actual number of copies probably was substantially fewer than • Estimates of number of copies disposed of by transfer currently to Library of Congress |