Mandatory Deposit of Electronic-Only Books

From The United States Copyright Office:

Section 407 of the Copyright Act generally requires the owner of the copyright in a work published in the United States to deposit two copies with the Copyright Office for use by the Library of Congress. The Register of Copyrights is authorized to exempt certain classes of works from this mandatory deposit requirement. In a 2010 interim rule, the Office codified its longstanding practice of exempting all electronic works that are not available in a physical format. The 2010 interim rule created one exception to this general rule, providing that electronic-only serials published in the United States are subject to mandatory deposit if they are affirmatively demanded by the Office.

In 2018, the Office issued a proposed rule that would make the interim rule final and would make electronic-only books subject to mandatory deposit by way of the same demand process. An “electronic-only book” was defined as electronic literary work published in one volume or a finite number of volumes published in the United States and available only online, with some exclusions for specific types of works such as serials, audiobooks, websites, blogs, and emails.

In June 2020, the Office updated the 2018 proposed rule in response to public comments. The update clarified the scope of material subject to demand and adjusted the provisions governing the use of technological protection measures on deposited material. The Office also provided additional information on the Library’s digital collection strategy and information technology practices.

In November 2020, the Office issued a final rule, to take effect on December 14, 2020. The final rule largely adopts the language set forth in the June 2020 proposed rule, with one additional clarification regarding the rule’s applicability to print-on-demand books.

Link to the rest at The United States Copyright Office

PG notes that the statement above is included in a press release (in typical government-style prose) describing the new rule for copyright registration of digital and print-on-demand books. The complete rule, including more commentary and additional background and explanation of the purpose of the rule is set forth in the embedded PDF below.

[Thanks to Ryan for pointing out some typos in the above paragraph so PG could fix them.]

For eons (in internet time), the US Copyright Office has required that a copyright registrant send two physical copies of printed books to the Copyright office to be transmitted to the Library of Congress.

OTOH, more recently, the Copyright Office has also permitted the registering of a claim of copyright electronically. Such an electronic registration can also include submission of an electronic copy of the work/book for registration purposes in lieu of depositing two physical copies of the “best edition” of the work to be registered with some limitations. (see https://www.copyright.gov/eco/faq.html for more information).

This more recent (in relative terms) rule clarified the right of Microsoft, for an example, to submit an electronic copy of the computer code for Microsoft Office without also sending two copies of a zillion-page printout of that code, likely the only two printed copies in existence, to the Copyright Office with its copyright registration application. (Computer programs have been exempt from physical deposits for some time, but this illustrates PG’s overall point.)

This latest rule change recognizes that, if a registrant is registering a copyright for a book that will exist only in ebook or print-on-demand format, the registrant doesn’t have to send two copies of the printed version of the book to the Copyright Office.

It appears to PG that the Copyright Office has finally come to the conclusion that maintaining electronic records of books to be copyrighted may be just a touch easier and more convenient than sending more and more dead trees to fill up space in Washington.

Of course, as the discussion of the rule indicates, US government computing and electronic data storage systems are way behind the times and have required changes in order to store copies of ebooks in a manner that will allow access to such stored copies for those required to have access or who are entitled to such access under various laws and regulations.

Please note that this is PG’s sarcastic summary of legal stuff to help make it understandable by mere non-lawyers. If PG were writing about this topic for lawyers, it would take a lot more time for him to do so and 99% of the visitors to TPV (including more than a few lawyers) would not get to the end of PG’s bloviations.

federalregister.gov-Mandatory-Deposit-of-Electronic-Only-Books

8 thoughts on “Mandatory Deposit of Electronic-Only Books”

  1. This is, I suppose, the same Office of the Copyright that took 2 years to process one of my e-deposited books, and after that 2 years, mailed me the documents for someone *else’s* book. I looked up that person’s contact information via their author website, contacted them, and discovered that (indeed!) they had *my* documents, so we mailed them to one another.

    When I informed the CO about this, they confessed they were horribly understaffed and unable to handle the workload, and didn’t think it would get any better.

    That was… 10 years ago? I have given up on them since. I doubt the situation’s gotten any better.

  2. PG is not nearly cynical or sarcastic enough.

    Remember that the primary purpose of the deposit requirement is to build the Library of Congress with free copies of books. (It has nothing to do with actual copyright registration outside of the bizarre world of pre-1972 musical compositions and sound recordings, and even if Led Zep won it’s still a bad song.) Even the Library of Congress has limits on available shelf space… especially in Suitland, Maryland — the offsite storage facility (remember, the last shot in Raiders of the Lost Ark? like that*), which happens to be on cheaply purchased former swampland that probably can’t bear all that much more weight. And books are heavy.

    * Don’t get me started on the National Archives. Or military records.

    • What little I’ve read about the deposit requirement in the USA has proved a little confusing. Would I be right in saying that deposit with the Library of Congress is compulsory for any book published whether or not ones chooses to register the copyright (and of course registration is no longer required for copyright to exists)? If, in the old days, one didn’t register the copyright did one still have to make the deposit of a published book or magazine?

      In the UK, as far as I can tell, the compulsory deposit requirement with the various libraries has no connection with copyright (other than being a kind of quid quo pro for the introduction of government regulated copyright in the Statute of Anne). Mind you, in the UK – once again as far as I can tell – a whole host of ephemeral publications are supposed to be deposited though I don’t think any attempt is made to enforce this.

      • Deposit is required for registration. There is no requirement for deposit if you do not register. The post here is only about what form the deposit must take.

        Registration opens up much more legal avenues to enforce your ownership. (Start here for just about anything you need to know and do: https://www.copyright.gov/)

        Honestly, if I were an IP lawyer, I would look askance at someone coming to me to enforce an unregistered copyright.

  3. Thank you for the post, so if I’ve got this right, I wasted my time sending dead tree books to them for copyright protection. Admittedly that was back three years ago. So this is a good thing?

    I for one would read more of your lawyerly bloviation on this topic.

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