The Mandatory Deposit Requirement of The Library of Congress: A Little Known and Little-Complied-With Law

by McKee, Voorhees & Sease, P.L.C.
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What is it?

The United States Library of Congress says it has the largest collection of published works in the world. Housed in three buildings on Capitol Hill in Washington DC, with warehouses elsewhere, estimates are on the order of 32 million catalogued books and other printed materials in 470 languages, and that many more in such things as manuscripts, newspapers, microfilm reels, maps, music, sound recordings, photographs, and the like.

One of the ways this collection is updated is the little-known law called "mandatory deposit". The language literally states:

17 US code section 407 deposit of copies or phonorecords for Library of Congress (a) except as provided by subsection (c), and subject to the provisions of subsection (e), the owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within 3 months after the date of such publication – (1) two complete copies of the best edition or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with any printed or other visually perceptible material published with such phonorecords. Neither the deposit requirements of this subsection nor the acquisition provisions of subsection (e) are conditions of copyright protection.

Why is it “Mandatory”?

As written, the statute is not voluntary. It says "shall". It is broad. It covers both existing copyrightable works and those which have been published regardless of copyrightability. The legislative history of this law states its purpose to be a legal mechanism to promote the arts and sciences (believe it or not one of the goals in the U.S. Constitution at article blank) by compelling copies be sent to them.

What is the Difference from Copyright Registration?

Copyright registration is an entirely different process. It is voluntary. Individuals and businesses can decide if they want to send in copies to the Copyright Office, which is a division of the Library of Congress, but they are not required by law. The advantages of getting a copyright registered are huge. A registration at least gives the chance of recovering attorney's fees if you have to sue an infringer (may pay both their attorneys and your attorneys) but also the idea of statutory damages. Statutory damages allow a court to make the infringer pay you between $700 and $30,000 per infringing work. You do not have to prove you lost money by the infringement. This can be difficult sometimes to prove.

Why Do So Few Comply?

First, there is little compliance because it is not widely known. In such cases noncompliance is “innocent”. But, of course, a bedrock principle of US law is there is no such thing as "ignorance of the law".

Second, there are a few notable exceptions to this law. If a work is published first outside the United States, it is exempted. Recently Congress clarified that online works such as websites are exempted. If you file a copyright registration application, you satisfy the mandatory deposit law. But these are just a relatively small sub-set of all the different types of works that are eligible for copyright, and therefore required to comply.

One commentator gives a frank answer. The law has no automatic penalty for noncompliance. Only if the Library of Congress becomes aware of a publication and makes a written request for deposit and you do not comply with that request is there a penalty. The penalty is a fine of not more than $250 for each work and the cost the Library of Congress would have to pay at retail price to purchase two copies of the work. It is worth noting that if several attempts are made to request the copies and they are ignored, the fine goes up to $2500. Thus, even those that know about this law consciously do not comply, and rely on the fact there will be no penalty unless they ignore a written request for it from the Library of Congress.

Imagine the practical burdens on, for discussion purposes, a small graphic design company. Almost every brochure, logo, signage, or the like they create and publish arguably must be sent in under the mandatory deposit statute. The administrative overhead alone to repeatedly do that is significant to such a company. It must be remembered that the test for should be deposited is that it is “published” and contain “copyrightable material”.What is copyrightable is very broad. It does not cover simply highly creative works such as novels, fine art, movies, and songs. Anything having a modicum of originality and creativity and is fixed in a human perceivable form has a chance of copyrightability. This can include marketing brochures, creative logos, photographs, lists of information, and other more mundane things.

The Dilemma Created by This Law

This presents an inconvenient reality. On the one hand, all individuals and companies, both nonprofit and for-profit, should endeavor to comply with all laws. On the other hand, some commentators suggest the following approach is reasonable:

  1. Periodically review all potential work that is published by you or your entity and check first if it might be exempted from the mandatory deposit requirement. The statute is quite long. It is implemented by even more regulations. Sometimes a work will fit an exemption. Thankfully (although it could change in the future), almost all electronic works are exempted and a few other types.
  1. If the work is valuable to the company, consider applying to register the copyright in it as an alternative way of complying. Presently this can be done for a $55 filing fee per work and an online application. If done by paper the fee goes up to $85.
  1. For other works, comply with mandatory deposit. You can simply mail two complete paper copies to a specific address at the Library of Congress. There is no fee except the cost of postage.If so, we would recommend keeping some sort of a record (e.g. mailing logs) in case you have to try to prove your attempted compliance. Note that the Copyright Office offers a way to guarantee evidence of deposit.If you also include a $30 check, they send back to you a certification of receipt.
  1. If you don't comply, make very sure you promptly respond to any written request to comply from the Copyright Office.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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