VI. CURRENT EFFECTIVENESS OF THE COPYRIGHT DEPOSIT FOR THE BENEFIT OF THE LIBRARY OF CONGRESS

The great value of the copyright deposit to the collections of the Library of Congress since 1870 has been recognized many times.106 In the past it has materially assisted the Library in building its collections on all aspects of American history, literature, law, music, and social culture. The contribution of copyright deposit, however, varies considerably in the separate categories of copyrighted works according to the amount of material deposited out of the total U.S. production, the value of the deposited material for use in research, and changes in the acquisition policies of the Library itself. An attempt will be made here to evaluate the usefulness of the present copyright deposit system in meeting the needs of the Library, and to point out certain adjustments that might be made in the present deposit provisions to serve the needs of the Library more adequately. Consideration is here directed only to works published domestically. Many thousands of valuable foreign works have been added to the Library's collections through copyright deposit, but only musical compositions have been deposited in sufficient numbers to allow the Library to rely on copyright deposit as a major source of acquisition for foreign works. Since registration and deposit of the works of foreign countries adhering to the Universal Copyright Convention is no longer mandatory, deposit of such works is likely to decrease. 107

The Library acquires a wide variety of works and no precise statistics are available as to the proportion of the works in the several categories that it acquires through copyright deposit and through other sources. The available statistics on copyright deposits transferred to the Library have therefore been supplemented by interviewing members of the Library staff who could indicate from experience the strength and weaknesses of the copyright deposit in meeting the Library's needs, and by examining the other acquisitions sources used by the Library, to determine what works are acquired through these other sources and to what extent such works might be covered by a broadened copyright deposit system.

Under the present system of deposit in conjunction with copyright registration, the Library receives by copyright deposit a very high percentage (estimated at 90 percent or over) of the current books and pamphlets, periodicals of general interest, dramas, music, maps, and motion pictures published domestically through the regular trade channels in these fields.108 In addition, many works of importance issued by nontrade publishers are received in these categories.

A

Newspapers, noncommercial periodicals of limited scope, fine prints, and photographs are not copyrighted and deposited in sufficient quantity to supply more than a small part of the Library's needs. few specialized categories of commercial-book publication-such as bibliographical series and de luxe limited editions-are also likely not to be copyrighted. The failure to claim copyright protection in these

108 See especially 1901 Librarian of Congress Annual Report, pp. 296-343; and 1946 Librarian of Congress Annual Report, p. 99.

107 Foreign music deposits fell off heavily (about 1,000 registrations per year) from fiscal 1956 to 1958, but in fiscal 1959 the rate of decrease slowed sharply to a decrease of 129 registrations; receipts in 1959 were still about 75 percent of the total in 1955. Foreign book registrations have fluctuated from year to year; the registrations for fiscal 1959 were about 79 percent of those for fiscal 1955.

10s These figures on commercial publications are based on published bibliographies where possible. The figure on periodicals refers to periodicals of general interest, not including periodicals published especially for information of a particular trade, profession, or organization.

COPYRIGHT LAW REVISION

categories has sometimes been attributed to the expense involved in the present requirements of copyright deposit and registration. Thus, the fees for the separate registration of each issue of a newspaper or other serial publication or of each separately published photograph may discourage copyrighting them; or the publisher of a very expensive work may forego copyright to avoid the deposit of two copies. The Library receives as gifts many newspapers and serial publications that are not copyrighted, and will often receive as a gift a single copy of a high-priced work not copyrighted. Perhaps some adjustment of the deposit and registration requirements for these categories of works should be considered.

A great variety of noncommercial works collected by the Library, chiefly State and local government publications, publications of businesses, societies, and institutions, and scholarly and scientific publications, are not copyrighted. Copyright is usually not claimed in these works, probably because they are largely intended for dissemination freely as a public service, as public information, or as a means of influencing public opinion. These materials are largely acquired by the Library as gifts or on an exchange basis.

Among the works which the Library is interested in acquiring, but which are not covered by the present copyright deposit system, are A sound recordings of musical and literary works. Sound recordings are not now acceptable as deposits for copyright registration.109 number of recording companies are supplying all of their recordings to the Library as gifts.110 A bill recently introduced in Congress, on which no action was taken, proposed to require record producers to deliver to the Library two copies of their recordings of copyrighted works, as selected by the Library from lists to be submitted by the producers of all such recordings issued by them.111

Deposit is not now required for foreign works protected under the Universal Copyright Convention although they may be reissued. here under an American imprint. The deposit of these works, when published in the United States, would be of value to the Library and could perhaps be required of the American publisher as proposed in the Perkins and Vestal bills.113

112

The Copyright Office has no satisfactory means of determining what percentage of total U.S. publication is published with copyright notice, or what percentage of the works in which copyright is claimed is actually deposited.

The Register of Copyrights is charged with the responsibility of enforcing compliance with the deposit provisions of the present law (sec. 14), and the present compliance activities of the Copyright Office were inaugurated in 1948. While the annual reports show a substantial growth since 1948 in the amount and value of materials deposited

109 The matter of making sound recordings eligible as deposits for copyright registration, either as copies of the musical or literary work recorded or as copyrightable works in themselves, involves substantive issues for special consideration beyond the scope of this study.

A recent bill would permit the deposit of a sound recording for the copyright registration of a musical composition in the special situation where the composition is produced directly upon a recording without the use of conventional notations: S. 4317, 85th Cong., 2d Sess. (1958), reintroduced as S. 1357, 86th Cong., 1st Sess. (1959). This bill was apparently designed to apply to what is known as "electronic" or "concrete" music.

110 The Library received as gifts 2,283 phonorecords in fiscal 1958.

111 H.R. 9844, 85th Cong., 2d Sess. (1958).

113 Over 10 percent of the books listed currently in Publishers' Weekly as U.S. publications are works of foreign origin.

113 Cited supra, at notes 74 and 75. It is believed that a requirement of deposit by the American publisher of a foreign work would not be precluded by the convention as long as the failure to deposit did not affect the copyright.

for registration as a result of compliance action by the Copyright Office, the number of registrations made in response to compliance requests in fiscal 1958 was only 6 percent of total registrations. A very large percentage of the compliance requests is initiated at the behest of various officers of the Library who learn of copyrighted items wanted for the Library which have not been deposited. Various lists of current publications are checked to see whether deposit of materials wanted by the Library is being overlooked, but a complete check of all publications is not feasible and it is sometimes difficult to determine whether a particular work not in hand has been published with a copyright notice.115 Requests are made regularly for the deposit of missing issues of periodical titles which are usually registered. Library purchase orders for domestic publications are often contingent on whether the works carry a copyright notice; if a work ordered does bear a notice, the dealer does not fill the order and the Copyright Office is asked to request its deposit.

Deposits have generally been made fairly promptly after publication. Studies made in the Copyright Office in fiscal 1957 showed that 94 percent of all copyrighted books and pamphlets listed in Publishers' Weekly for a 6-month period were deposited within 2 months after publication; that 62 percent of all registrations of domestic book and pamphlet material, 87 percent of periodicals, and 81 percent of domestic music were deposited within 1 month of publication; and that 95 percent of all registrations were made within 6 months of publication. However, in order to fulfill its service and bibliographical functions the Library needs some of these materials earlier than this. It must buy from a local retailer some copyrighted periodicals and newspapers that are in immediate demand. It has obtained the cooperation of many publishers in sending one copy of books and pamphlets to the Library prior to general publication for the preparation of catalog cards, because the libraries of the country want to have the Library of Congress catalog cards when the books are published.116 This means that many publishers are now sending three copies of copyrighted books to the Library, two copies being deposited after publication for copyright registration. A provision in the law allowing deposit before general publication might serve to make two copies suffice for all purposes.

Since the copyright deposit system covers only copyrighted works, the Library must acquire by other means a large volume of uncopyrighted material. Federal documents are deposited under title 44, section 139, of the United States' Code. State publications are acquired either under authorization of individual State distribution laws or by exchange agreements.118 Other types of publications which the Library needs, it tries to secure through exchange agreements with other institutions, or by gift from the authors or publishers.

114 The number of registrations resulting from compliance activities in fiscal 1949 was 3,392; in fiscal 1958, 15,007. Most of these registrations are made in response to letters which call attention to §§ 13 and 14 of the law and request compliance. The number of cases in which formal "demands" are issued (after requests have been unavailing) are very few in number-59 cases since 1950.

is Works published without a notice, not being copyrighted, are not subject to the deposit requirement. 118 For this purpose, an effort was made during the 1940's to encourage the deposit of books prior to the announced publication date for subsequent registration (see U.S. Copyright Office Regulations, 2017 (1942)), but such prior deposits were not made in sufficient quantity to fill the Library's needs.

117 As pointed out in pts. I and II above, the legal deposit systems in some foreign countries cover all domestic publications (with specified exceptions) regardless of copyright. A similar system in the United States would require consideration of the constitutional basis for requiring the deposit of works not copyrighted.

is It has been estimated that about 5 percent of State publications are copyrighted.

Insofar as possible, the Library seeks to establish voluntary deposits of uncopyrighted materials from these sources on a continuous and automatic basis. The Library's funds for purchase of current domestic materials is expended largely in the purchase of duplicate copies of works necessary in its various research and service functions, and to secure works not obtainable through other sources.'

119

In view of the extremely heterogeneous nature of the works deposited, it is difficult to make an accurate appraisal of the monetary value of the material acquired by the Library through copyright deposit; but it has been estimated that the value of the deposits selected by the Library is over $500,000 annually.120 Not the least of the advantages of the deposit system to the Library is that it provides an automatic flow to the Library of the more important works of various classes published commercially in the United States, constituting a widely useful national collection of domestic publications in the form of books, periodicals, dramas, music, maps, and motion pictures.

VII. ANALYSIS OF ISSUES

A. GENERAL OBSERVATIONS

A system for the deposit of copyrighted works cannot bring into the Library of Congress as the "legal deposit" system in other countries does for their national libraries-the large volume of domestically published works that are not under copyright. The Library of Congress, however, has generally been able to procure the bulk of the uncopyrighted domestic publications wanted for its collections through gift or exchange or, to some extent, through purchase. If a "legal deposit" system covering all domestic publications without regard to copyright were desired, the consitutional basis for requiring the deposit of works not under copyright would need to be considered; and since the deposit requirement for such works would not be based on the copyright clause of the Constitution, such a "legal deposit" system for works not under copyright would properly be the subject of legislation other than the copyright law. The possibility of such legislation is beyond the scope of this study which is concerned with the problem of the deposit provisions in the copyright law. Perhaps, even under a "legal deposit" system, the deposit of copyrighted words would be integrated with their deposit for copyright registration. It

119 A substantial portion of such funds is used for the acquisition of newspapers on microfilm, as an economical alternative to binding.

120 See Hearings Before the Subcommittee of the Committee on Appropriations, House of Representatives, 86th Cong., 1st Sess., p. 194 (1959). The estimate is derived on an average-cost-per-item basis for each category of works. In fiscal 1958 the number of copies in each category currently transferred to the Library

The figure for domestic books includes 18,480 second copies. The figures for domestic periodicals, newspapers, and maps include the two copies deposited with each registration.

is assumed herein that a system for the deposit of copyrighted works for the Library will continue to be a part of the copyright law.

In considering the deposit provisions to be incorporated in a new copyright law, it should be borne in mind that deposits of copyrighted works serve two purposes: (1) To identify the work for the purpose of copyright registration, and (2) to provide copies of works for the Library of Congress.

The deposit of a copy of the work (or of other identifying material) is deemed essential to the making of reliable and informative registration records. The deposit provides proof of the existence of the work and its content at the time of registration, supplies evidence of its copyrightability and of compliance with the requirements for copyright protection (such as the copyright notice), and furnishes data needed for an accurate registration record (both as a check against the data given in the application for registration and as a source of other data needed to identify the work and to record facts bearing on the copyright claim). Insofar as the deposits remain available for consultation, they also serve as record evidence of the work covered by the copyright registration.

The great value to the public of supplying copies of published works to a national library has long been recognized in the United States and in other countries. The major problem here is the kind of deposit system that will serve this purpose most effectively and economically.

B. THE BASIC DEPOSIT SYSTEM

The present system of requiring the deposit of copyrighted works for registration "promptly" after publication, and of having this deposit include the copies for the Library (with deposit being enforceable by a demand under penalty for noncompliance) has worked reasonably well, on the whole, in providing the Library with the copyrighted domestic works wanted by it. The success of the present system in this regard depends upon the registration (and the deposit in conjunction therewith) of virtually all of the copyrighted works published domestically that are wanted by the Library. The deposit system to be provided for in a new law, therefore, will depend largely upon the kind of registration system therein provided.

Under a system of compulsory registration, the requirement that the deposit for registration include the copies wanted by the Library (which is the theory of the present law) would operate to supply the Library with the copyrighted works it wants. Under such a registration system the present deposit provisions could be retained in substance, perhaps with some minor changes in the details discussed below.

If the registration system were to be completely abandoned, it would be necessary to establish a compulsory system of deposit for the Library. The features of such a system might follow the pattern discussed below in connection with deposits for the Library in the absence of registration.

If registration is provided for but is not to be compulsory, the deposit provisions of the present law will need to be altered or supplemented to assure the deposit for the Library of works wanted by it. This problem was dealt with in a number of the prior revision bills discussed in part III above.

The bills referred to provided for voluntary registration (though most of them made registration advantageous to the copyright owner