and it was apparently assumed that a large portion of the works under copyright would be registered). In general, the approach followed in most of these bills was to keep the present integrated deposit system for registered works-i.e., the deposit required for voluntary registration included the copies for the Library-and to supplement this by requiring that certain published works, if not registered, were to be deposited for the Library within a stated time after publication. A somewhat different approach, though perhaps much the same in result as regards deposit, was followed in the Thomas bill (which offered little inducement to register but apparently attempted to make deposit a substitute for registration). Under the Thomas bill, deposit for the Library of certain kinds of published works within a stated time (accompanied by an application for deposit and a fee) was a primary requirement, and registration could be secured, if desired, in conjunction with the deposit.121 In all of these bills the deposit for the Library was enforceable by a demand under penalty of a fine; the Thomas bill also deprived the publisher of certain remedies if he failed to make the deposit, and permitted him to relinquish publication rights to avoid the fine.'

122

Assuming that registration under a new law is to be voluntary but that a large volume of registrations can be expected (which would be likely if registration is made advantageous to the copyright owner), the present integrated system has obvious advantages over a system of separate deposits for registration and for the Library. For all concerned the integrated system is simpler and more economical. Deposit for the Library could then be made a supplemental requirement for those copyrighted works wanted by the Library which are not deposited for registration; and the required deposit for the Library could be enforced by demand under a penalty adequate to insure compliance. The more important details of such a system are considered in the following discussion.

C. DEPOSIT FOR REGISTRATION

Under any system of copyright registration it would be possible, of course, to have two separate systems of deposit, one for registration and another for the Library. As indicated above, however, it is advantageous to all concerned to have the deposit made for registration include the copies required for the Library. The present law is based on this premise. It requires, for the registration of works published in the United States, two complete copies of the best edition (with certain exceptions to be noted below) (sec. 13); and these copies are available to the Library (sec. 213).

Provision is also made in the present law for the voluntary registration of certain classes of unpublished works (sec. 12). Except for specially selected items, these unpublished works are not taken into the Library's collections. For their registration the deposit of one copy only, or of other identifying matter, is now required. But when a work registered as unpublished is later published, copies of the published edition must be deposited as required generally for published works (sec. 12).

121 All of these bills contained further provisions as to the deposit to be made for the voluntary registration of works other than those required for the Library.

122 The Thomas bill, cited at note 84 supra, also required the deposit of unpublished works and deprived the owner of certain remedies if he failed to make the deposit (§ 14).

All or a large part of the copyrighted published works in most categories are wanted by the Library, but there are some categories which the Library does not select for its collections, or of which it takes only a few representative samples. The deposit of one copy of works in the latter categories (or other identifying matter where the deposit of a copy is not practicable) would be sufficient for the purpose of registration alone.

Under the present law (sec. 13), two categories of published works, which are not generally taken into the Library's collections,123 are excepted from the two-copy requirement: for the registration of a contribution to a periodical, one copy only of the periodical issue is required; 124 and for the registration of certain published works in the art categories, photographs or other identifying matter may be deposited in lieu of copies. 125

Some of the other categories of published works, of which two copies are now required for registration, are not generally taken into the Library's collections. This is true at present of commercial prints and labels and of certain works in the art categories. Moreover, published motion pictures, of which two copies are now required for registration, are subject to a special procedure: both copies are returned to the depositor after registration upon his agreement to deliver one copy to the Library at its subsequent request. The Library now collects only one copy of selected motion pictures.

Consideration might be given to limiting the two-copy requirement to those categories of works wanted by the Library. One copy only (or other identifying matter where appropriate) would then be sufficient for the registration of works in other categories. This will be considered further in the discussion below of the works to be deposited for the Library in the absence of registration.

The deposit requirements of the present law may also be too rigid in certain other respects. Because of the great variety in the forms of copyright material and the development of new forms, any blanket provisions governing deposits may prove to be unsuitable in special cases, as the following instances illustrate. The requirement of separate deposit and registration, with the payment of the registration fee, for each issue of a newspaper, and for each separately published photograph, has discouraged their deposit and registration. The requirement of two copies tends to discourage the deposit and registration of very expensive works. For the purpose of registration, identifying parts of a motion picture might suffice, subject to the deposit for the Library of one copy of the motion pictures selected for its collections. A sound recording is not now acceptable for deposit, though in the case of so-called "concrete" or "electronic music" of recent innovation, the work is composed and reproduced by the use of sound recordings and its transcription into written notation may be difficult and of dubious clarity. A recent amendment of the statute was necessary to permit the deposit of photographs in lieu of actual copies of unwieldy, fragile, or costly art works, but the Copy

123 For other reasons one copy only is required for the registration of works of foreign authors published abroad (sec. 13), though many such works are wanted by the Library. For such works, the foreign registrant is given the option of securing registration without payment of the fee by depositing two copies with a catalog card (sec. 215).

124 In most cases two copies of the same periodical issue will be acquired by the Library through their deposit for copyright registration of the periodical.

125 Two sets of photographs are now required in lieu of the two copies. Since the photographs are not wanted by the Library, one set would seem to suffice.

right Office is still obliged to accept actual copies though their handling and storage is inconvenient.

Whatever may be the appropriate provisions to take care of these particular instances and other special situations are likely to arise in the future-it may be desirable to provide for some flexibility in the statutory prescription of the deposit requirements, perhaps by authorizing some modification of the statutory prescription by administrative regulation.

D. DEPOSITS FOR THE LIBRARY IN THE ABSENCE OF REGISTRATION

1. Works to be deposited

As indicated above, there are some categories of copyrighted works that are not generally wanted for the Library. Under a system that requires deposit for the Library of copyrighted works not registered, such categories could be excluded. This was the aim of some of the prior revision bills: they purported to limit the Library deposit to the kinds of works then being collected by the Library. For example, the Dallinger bill 126 required the deposit for the Library (if not deposited for registration) of two copies of "any book published in the United States," and defined "book" as including "every volume, part or division of a volume, pamphlet, sheet of letter press, sheet of music, map, plan, chart, or table separately published." The Vestal bill 127 required the deposit for the Library of two copies of works published "in book form" and one copy of each issue of a newspaper or other periodical. The Thomas bill 128 required the deposit for the Library of two copies of works published "in book, pamphlet, map, or sheet form."

Such a specification in the statute, however, may well prove to be too narrow, particularly since the acquisitions policies of the Library change from time to time.129 Perhaps a better approach would be to authorize the Librarian of Congress (or the Register of Copyrights with the approval of the Librarian) to prescribe by regulation (which could be amended from time to time) the categories of works that are to be deposited (or that need not be deposited) for the Library. Similar authority might be given to permit the deposit of only one copy of any category of works; this might be found desirable, for example, in the case of very expensive works. The deposit requirements for registration could also be made subject to adjustment by regulation to correspond with the Library requirements.

2. Time of deposit

Copies are generally needed by the Library as soon as possible after publication. The present law calls for deposit "promptly" after publication, but that term has been deemed to permit long delay. A definite time period would seem preferable, as was provided in most of the prior revision bills which specified time periods ranging from 30 to 90 days after publication.

As mentioned earlier, the Library wants to have a copy of some works, particularly trade books, in advance of publication for the

126 Bill cited at note 73 supra, § 62.

127 Bill cited at note 75 supra, § 41.

128 Bill cited at note 84 supra, §§ 14(1), 29(1).

129 For example, motion pictures were not being collected by the Library at the time of the revision bills referred to, but are being collected on a selective basis today.

preparation of catalog cards, and many book publishers are now voluntarily sending an advance copy to the Library for this purpose. Consideration might be given to making such advance copies acceptable in lieu of deposit after publication.

3. Enforcement of deposit

The prior revision bills followed the general scheme of the present law (sec. 14) for enforcing the deposit required for the Library. If deposit was not made (with or without registration) within the specified time, the Register of Copyrights (or in some bills the Librarian) could demand the deposit. A time period, ranging from 30 to 90 days in the various bills, was allowed for compliance with the demand, and a penalty was provided for noncompliance.

This penalty in the present law is twofold: a fine of $100 plus twice the retail price of the best edition of the work, and voiding of the copyright. On the theory that deposit (as well as registration) was not to be a condition for copyright protection, most of the prior revision bills eliminated the penalty of voiding the copyright; the fine was retained in amounts ranging from $50 to $250.

Loss of copyright is an extremely severe penalty, and its necessity to compel deposit may be questioned. In practice, the vast majority of the Register's requests for compliance under the present law have been met promptly, and the penalties have been imposed in relatively few cases. To what extent the high rate of compliance may have been impelled by the threat of loss of copyright, rather than by the threat of the fine, is a matter of conjecture.

If it is doubted that the present fine of $100 is sufficient to compel compliance, the amount of the fine might be increased and the loss of copyright eliminated.

4. Who should make deposit

Under the present law the obligation to make deposit and registration is placed on the copyright owner (secs. 13, 14). In practice, the publisher (who may or may not be the copyright owner) commonly makes the deposit and applies for registration on behalf of the copyright owner.

In requiring deposits for the Library in the absence of registration, the prior revision bills differed as to whether the copyright owner or the publisher was to be responsible for the deposit. Since the Library deposit would pertain only to published works, the deposit of copies would usually be more convenient for the publisher; demands could be made more readily on him; and assuming that failure to deposit is to be penalized by a fine only, it would seem logical to place the deposit obligation upon the publisher. It might be pointed out that in the case of a foreign work protected under the Universal Copyright Convention, the obligation to deposit when the work is published in the United States would necessarily be placed upon the domestic publisher (and his default could not affect the copyright).

5. Receipt for deposit

Some of the prior revision bills provided for the issuance of a receipt for Library deposits, 130 and the Thomas bill also provided for the payment of a fee to accompany the deposit.131 If such receipts

130 The present law (§ 209) provides for issuance, upon request, of a receipt for copies deposited for registration, as did some of the revision bills. Such receipts have almost never been requested. Inasmuch as a certificate of registration, showing the deposit, is issued in all cases, the receipt seems superfluous. 131 Bill cited at note 84 supra, §§ 15, 42.

are required, a small fee would seem to be warranted. Or it might be provided that such receipts are to be furnished upon request, for a small fee.

E. DISPOSITION OF DEPOSITS

About half of all the deposits heretofore made for registration have not been wanted for the Library. The present law (sec. 214) provides that those not taken by the Library may be destroyed when the Librarian and the Register jointly determine that it is no longer necessary to retain them in the Copyright Office; but before their destruction, notice of the published works to be destroyed must be printed in the "Catalog of Copyright Entries," and notice of the intention to destroy the manuscript of any unpublished work must be given to the copyright owner of record, and any work to be destroyed may then be reclaimed by the copyright owner.

Ideally, perhaps, a copy of every registered work should be kept in the Copyright Office or in the Library during the life of the copyright. But this is not feasible, principally for lack of storage space, and little need has been demonstrated to have deposits of published works available for copyright purposes after a few years. Some provision for the ultimate disposition of the huge volume of deposits seems essential. Provisions similar to those in the present law were included in all of the prior revision bills. The practices followed under the present law, as outlined above in part V, A, attempt to balance the demonstrated need to have deposit copies available against the storage limitations, and those practices seem to have worked reasonably well.

The printing in the "Catalog of Copyright Entries" of a notice of the groups of published works to be destroyed has proved to be a useless procedure. Almost no requests to reclaim deposits have been made in response to such notices over a period of many years.

F. FREE MAILING PRIVILEGE

The present law provides that deposits may be mailed free of cost to the copyright claimant (sec. 15). Beginning with fiscal year 1958, however, the Copyright Office has been required to pay the estimated postage of $6,500 per year for such free mailings. A rough estimate indicates that of all the copyright deposits mailed to the Copyright Office during a recent period, about 30 percent were mailed free. Free mailing entails special procedures, and many publishers apparently prefer to include the mailing of copyright deposits in their usual mailing routines, thereby paying the postage. Whether the free mailing privilege should be continued, with postage being paid by the Copyright Office rather than by the individual depositors, may be open to question.

The present law also provides that the postmaster, if requested, is to give a receipt for deposits mailed (sec. 15). This seems to be a vestige of the copyright statutes prior to 1909, which required that deposit be made or placed in the mails on, or very shortly after, the date of publication. Evidence of timely mailing was then important, but the date of mailing no longer has such significance.