COPYRIGHT LAW REVISION

As to published works: In view of its limited storage space, and since most published works are available elsewhere (and can generally be identified from the registration records), the Copyright Office has felt it is less important to retain for consultation the published works rejected by the Library. Commercial prints and labels, however, are retained substantially intact from 1874 to date.89 Some published materials deposited in classes D, G, I, and J before 1946 are still retained in the Copyright Office because they were registered and stored in the same series as unpublished works. Otherwise the Office retains published works deposited during the current and the preceding 3 years in all classes except periodicals and maps (which are transferred immediately in toto to the Library) and motion pictures (which are generally returned to the copyright proprietor, otherwise transferred to the Library).

The current policy of the Office, therefore, is to preserve deposits (either in the Copyright Office or in the Library), as far as storage space will permit, for as long as there is a substantial need for their use as record evidence in connection with the copyright claim. For unpublished works, which exist at most in only a few copies, this is considered to be for the full copyright term. For published works, which are usually widely distributed and available elsewhere, a relatively short period has proved to be generally sufficient."0

B. USES OF THE DEPOSITS FOR COPYRIGHT PURPOSES

The basic copyright purposes for the retention of deposit copies are to have them available when needed in litigation and for identification of the exact work under copyright.91 The extent to which the deposits have been so used is discussed briefly below.

Satisfactory statistics on the uses of deposits for copyright purposes are difficult to procure. Uniform statistics have not been kept over the years, and users of deposited materials have not been asked, or if asked have not always clearly indicated, their purposes in consulting the deposits. This analysis presents the facts available.

In 1926 the Register of Copyrights was asked:

How frequently are the copies deposited for copyright withdrawn or consulted for use as evidence, or otherwise, in litigation?

He stated:

The deposit copies are occasionally examined. No exact figures are available, but removals from the files because of litigation would not amount to more than 100 per year. Not above five cases are known where copies deposited between the period 1870 to date have been removed in order to be taken into court for use as evidence or otherwise in litigation.92

89 Commercial prints and labels previously registered in the Patent Office were transferred to the Copyright Office in 1940. The Library has never made a general selection of the deposits in this category. Copies of this material may not be readily available elsewhere, and requests to consult deposit copies, including older ones, have been relatively frequent. Oversized and three-dimensional works in this category have been disposed of, and a few of these were selected by the Library in the course of their disposition.

It is estimated that, at most, 50 requests per year to consult copies cannot be satisfied. The requests are not necessarily related to copyright purposes.

"In two cases the failure to produce the deposited copies in evidence was raised by the defendant but the court accepted copies answering the description of those identified in the certificate of registration (GerlachBarklow Co. v. Morris & Bendien, Inc., 23 F. 2d 159 (2d Cir. 1927); Alfred Bell & Co. v. Catalda Fine Arts, Inc., 5 F.R.D. 327 (S.D.N.Y. 1946)). In Sayers v. Spaeth (not reported but set forth in 20 COPYRIGHT OFFICE BULL. 625; S.D.N.Y. 1932) copyright was challenged on the ground that since only one copy could be found in the Library of Congress, it was to be presumed that only one copy had been deposited; the court rejected this argument since the records of the Copyright Office showed that the two copies required had been deposited.

Hearings Held Before the House Committee on Patents, 69th Cong., 1st Sess., on H.R. 10434, p. 225 (1926). From 1909 to 1939 thousands of deposits were being returned immediately to the copyright owners and the amount of their use in litigation cannot be determined.

Deposit copies have been subpoenaed for use in court in seven known cases since 1929.93 Since 1940, the Copyright Office has used deposit copies in seven court cases in which it was an interested party. These are cases known to the present officers of the Copyright Office; there are probably others but they are undoubtedly few.

In a number of instances parties engaged in legal controversies have requested the Copyright Office or the Library of Congress to supply a certified photocopy of a deposited work involved in such a controversy. Prior to August 1953, the "Copyright Office Regulations" provided that a certified photocopy of a copyright deposit would be supplied (1) when authorized in writing by the copyright owner, (2) when required in a court proceeding in which the work was the subject of litigation, or (3) when ordered by a court.94 The need for copies of deposits by parties involved in legal controversies before they have reached the stage of litigation is illustrated by the following statement presented to the Library by a prominent copyright attorney in urging that this regulation be broadened:

If a claim of alleged infringement is a just one, the [motion picture] companies desire to settle it as quickly as possible and out of Court. Even if a claim is not entirely clear cut, the companies generally try to settle rather than to incur the expense and risk of a trial. But unless the defendant is able to obtain a copy of the works alleged to be infringed, it has, in most instances no opportunity of determining, for itself, the validity of the claim asserted. The requirement of obtaining a written authorization from the copyright proprietor is one often impossible of accomplishment. From my own personal experience I can state that in the majority of cases the claimant refuses such authorization and in many other cases claimants have furnished copies of the works alleged to be infringed which are radically different from the actually copyrighted works.

No court order can be obtained until a case is actually in court and the inability of a settlement out of court has caused numerous cases to be brought which might otherwise have been settled. Settlements after suits have been filed are always at much higher figures than if the claims had been disposed of before the bringing of suit.

The regulation was broadened in June 1953 (effective August 1953) to provide that a certified copy of a copyright deposit would also be supplied when the work was involved in "prospective litigation.'

995

Statistics on the number of certified photocopies supplied to parties involved in actual or prospective litigation have only recently been kept. On the basis of informed opinion, it is estimated that 175 such photocopies were supplied in 1957. Of the 124 supplied by the Copyright Office, 30 percent were for commercial prints and labels, 20 percent for published works of art, 15 percent for unpublished music, 10 percent for books or pamphlets. There is no breakdown by class of the 51 certified photocopies supplied by the Library of Congress.

A larger number of photocopies of copyright deposits have been supplied to copyright owners, in many cases to replace the owner's copy of an unpublished work which he had mislaid or destroyed. In recent years approximately 1,100 photocopies have been made annually from deposits retained in the Copyright Office. Seventy-nine percent of these in 1958 were copies of unpublished music. Presumably some of these may be used in copyright negotiations. Another estimated 1,500 photocopies annually are made from deposits transferred to the Library of Congress.

These cases were U.S. v. Santangelo (1937), settled before trial: U.S. v. Rebhuhn (1939), a Post Office proceeding against an alleged obscene publication; U.S. v. Dinshah P. Ghadiali et al, (1936), another Post Office case; U.S. v. Alvin Kaplan (1939), settled before trial; Jerome v. Twentieth Century-Fox Film Corp., 65 F. Supp. 736 (S.D.N.Y. 1946); Korzybski v. Underwood & Underwood, 36 Fed. (2d) (1929); Dodge Inc. v. General Classics (1958).

94 37 C.F.R., 1949 edition, § 201.2(d).

95 18 Federal Register 3459, June 17, 1953.

Requests in the Copyright Office to inspect deposits still in its custody numbered 232 in fiscal 1959 and involved about 525 works. A study of the requests in fiscal 1957 shows the following distribution among the classes:

To make some evaluation of the need to consult deposit copies, users were asked to state the purpose of their requests over a 10-month period in 1957. From a careful analysis of the replies, some of which were too vague to be of use, it appears that the following motives were present in one or more cases: to determine whether a work had been infringed or would infringe another; whether copies or certified copies would be needed; whether exploitation of a work would be desirable; to identify a work; to compare it with another; to make a description of it, or to copy it with permission; to consult a work not available elsewhere. It is estimated that possibly two-thirds of the requests were the result of an interest in a legal claim in connection with which examination of one or more deposits was desirable. In three or four instances there was an indicateion of interest in reproducing or exploiting a work under copyright. Other requests usually did not indicate a specific copyright interest and were in some cases apparently for other research purposes.

In summary, it is apparent that the number of deposited copies. requested for copyright purposes is very small in proportion to the number of registrations made, though the availability of the deposited copy may be of great importance in a given instance.

C. COPYRIGHT DEPOSITS TRANSFERRED TO THE LIBRARY OF CONGRESS

In the period from 1902 to 1957, some 7,490,000 copies of deposited works (49 percent of all deposits received) were transferred to the Library of Congress for its collections, for transfer to other libraries, or for its exchange program. (See table, p. 24.)

In numbers of copies transferred the materials rank as follows:

are now

Periodicals, maps, and one copy of published music 97 automatically transferred to the Library. Motion pictures are usually returned to the copyright claimant subject to the recall of one copy of selected titles for the Library's collections. Commercial prints and labels have never been selected (except for a few oversized prints among those being disposed of). With other published materials the Library's practice has been to select one or both copies of individual titles. In these latter classes the amount of material selected fluctuates with the acquisition policies of the Library and the types of materials available; e.g., in the art classes, where the total number and character of deposits has changed radically in this period.98

Copyright deposit has contributed materially to the growth and strength of the Library's collections of domestic publications, especially in the classes in which the proportion of registrations is high in relation to the total volume of publication. An assessment of the effectiveness of the copyright deposit in meeting the Library's needs is attempted in part VI below.

D. TRANSFERS TO OTHER GOVERNMENT LIBRARIES

Regular transfer on a current basis to other Government libraries began soon after passage of the 1909 act. Statistics are available up to 1945 and show a total of 196,537 copies transferred prior to 1945 to 15 Federal libraries in the District of Columbia, among them the Department of Agriculture Library and the National Library of Medicine which act as the national libraries in their fields. No statistics on transfers to other libraries since 1945 are available; by extrapolation the figure would be about 305,000 copies transferred up to 1957. All of the deposits transferred to these libraries were books except for 40,000 pieces of published music transferred to the District of Columbia Public Library early in this period. Most of the transferals were second copies of works for which the Library of Congress had need for only one copy.

In exchanges with foreign libraries and domestic nongovernmental libraries the Library has transferred an undeterminable number of copyright deposits (usually second copies) as well as materials received in other ways.

E. DISPOSAL OF DEPOSITS UNDER SECTION 214

Until 1909 there was no authorization in the law for the Library to dispose of any copyright deposits. Many of the works received were not needed or wanted in the Library and were stored in the custody of the Copyright Office. Mr. Putnam, then Librarian, argued vigorously to be relieved of the necessity to store such items.99 Congress was convinced 100 and provided in section 60 of the 1909 act (now

In the early years, some periodicals were returned to the copyright owner.

97 Prior to 1957 both copies of published music were routinely transferred. The Copyright Office now retains one copy because of the amount of copyright interest in this field, unless the Library specifically requests both copies.

9 The deposits in the art classes are now about 40 percent of those made in 1909. Moreover, many works now registered, such as jewelry, textiles, toys, etc., are not wanted for the Library.

99 Sec 1904 U.S. Librarian of Congress Annual Report, pp. 2-22, for a full exposition of his views, and Hearings Before the Joint Committee on Patents, on S. 6330 and H.R. 19853, June 6, 1906, pp. 14, 15. 100 H. REP. NO. 2222, 60th Cong., 2d Sess., p. 21 (1909).

sec. 214) for the disposition of deposits not wanted by the Library and not needed for preservation in the Copyright Office, after notice of their intended disposition has been given.

Deposits returned to claimants. Since fiscal 1910 notice that the older deposits of published works can be reclaimed before their destruction is inserted in each issue of the "Catalog of Copyright Entries" but very few deposits have ever been reclaimed as the result of publication of this notice." 101

From 1910 until 1939 the Office returned to the copyright owner immediately after registration most of the published works not selected by the Library of Congress or by the other Federal libraries. It appears that during this period the Office "disposed" of current deposits not wanted by the Library mainly by automatic return to the claimant. 102 Thus the deposit was preserved as a record for the claimant but not for public consultation. The total number of deposits returned to claimants was 1,678,687, of which 42 percent were pamphlet materials in class A. Including "contributions to periodicals" then registered in class A and a relatively small number of "books proper, 36 percent of the total deposits in this class were returned. All motion-picture deposits were returned,103 about 10 percent of the art deposits, 5 percent of the periodicals, and 4 percent of the music deposits. Except for motion pictures and occasional deposits reclaimed in other classes, this practice was discontinued in 1939.

Bulk transfers of deposits to the Library of Congress.-While return to the claimant was the method of disposing of current deposits not wanted by the Library up to 1939, disposal of older materials was accomplished by transferring large segments of whole classes to the Library of Congress. There is evidence of selection of some items for the Library, 10 but the remainder was apparently destroyed. In 1939 the Office transferred to the custody of the Library all music deposited prior to 1928 still in its possession.

Currently, all deposits in a particular class not previously selected, when they are no longer to be retained in the Copyright Office, are transferred to the Library in bulk. The Library then handles them as it does materials received from any other source. The works are reassessed and some of them are added to the Library's collections, or are used for exchange with or donation to other libraries. Those remaining after these screenings (the vast majority of those transferred in bulk) are pulped.

105

101 See especially the annual reports of the Register of Copyrights, 1910, 1911, 1912, section on "Copyright Deposit.' 102 See annual reports of the Register of Copyrights, in section on Copyright Deposits, especially that of 1932, p. 3.

103 Early motion pictures made on nitrate stock, easily flammable, were considered a fire hazard and so undesirable. When the Library established a Motion Picture Division, an agreement was made in 1946 that films would be returned to the owners for interim use if they would return a complete copy in satisfactory condition if the Library recalled it within 2 years of registration. This arrangement is still in force.

104 See annual reports of the Register of Copyrights, section on Copyright Deposit, for 1910 to 1932. 105 Occasionally works which held little bibliographic interest when first published become more valuable over the years and are selected for the Library out of the bulk transfer. E.g., there is growing interest in advertising art of the 19th century as social documentation of importance.