§ 407. — Deposit of copies or phonorecords for Library of Congress.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC407]
TITLE 17--COPYRIGHTS
CHAPTER 4--COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION
Sec. 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 three 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.
(b) The required copies or phonorecords shall be deposited in the
Copyright Office for the use or disposition of the Library of Congress.
The Register of Copyrights shall, when requested by the depositor and
upon payment of the fee prescribed by section 708, issue a receipt for
the deposit.
(c) The Register of Copyrights may by regulation exempt any
categories of material from the deposit requirements of this section, or
require deposit of only one copy or phonorecord with respect to any
categories. Such regulations shall provide either for complete exemption
from the deposit requirements of this section, or for alternative forms
of deposit aimed at providing a satisfactory archival record of a work
without imposing practical or financial hardships on the depositor,
where the individual author is the owner of copyright in a pictorial,
graphic, or sculptural work and (i) less than five copies of the work
have been published, or (ii) the work has been published in a limited
edition consisting of numbered copies, the monetary value of which would
make the mandatory deposit of two copies of the best edition of the work
burdensome, unfair, or unreasonable.
(d) At any time after publication of a work as provided by
subsection (a), the Register of Copyrights may make written demand for
the required deposit on any of the persons obligated to make the deposit
under subsection (a). Unless deposit is made within three months after
the demand is received, the person or persons on whom the demand was
made are liable--
(1) to a fine of not more than $250 for each work; and
(2) to pay into a specially designated fund in the Library of
Congress the total retail price of the copies or phonorecords
demanded, or, if no retail price has been fixed, the reasonable cost
to the Library of Congress of acquiring them; and
(3) to pay a fine of $2,500, in addition to any fine or
liability imposed under clauses (1) and (2), if such person
willfully or repeatedly fails or refuses to comply with such a
demand.
(e) With respect to transmission programs that have been fixed and
transmitted to the public in the United States but have not been
published, the Register of Copyrights shall, after consulting with the
Librarian of Congress and other interested organizations and officials,
establish regulations governing the acquisition, through deposit or
otherwise, of copies or phonorecords of such programs for the
collections of the Library of Congress.
(1) The Librarian of Congress shall be permitted, under the
standards and conditions set forth in such regulations, to make a
fixation of a transmission program directly from a transmission to
the public, and to reproduce one copy or phonorecord from such
fixation for archival purposes.
(2) Such regulations shall also provide standards and procedures
by which the Register of Copyrights may make written demand, upon
the owner of the right of transmission in the United States, for the
deposit of a copy or phonorecord of a specific transmission program.
Such deposit may, at the option of the owner of the right of
transmission in the United States, be accomplished by gift, by loan
for purposes of reproduction, or by sale at a price not to exceed
the cost of reproducing and supplying the copy or phonorecord. The
regulations established under this clause shall provide reasonable
periods of not less than three months for compliance with a demand,
and shall allow for extensions of such periods and adjustments in
the scope of the demand or the methods for fulfilling it, as
reasonably warranted by the circumstances. Willful failure or
refusal to comply with the conditions prescribed by such regulations
shall subject the owner of the right of transmission in the United
States to liability for an amount, not to exceed the cost of
reproducing and supplying the copy or phonorecord in question, to be
paid into a specially designated fund in the Library of Congress.
(3) Nothing in this subsection shall be construed to require the
making or retention, for purposes of deposit, of any copy or
phonorecord of an unpublished transmission program, the transmission
of which occurs before the receipt of a specific written demand as
provided by clause (2).
(4) No activity undertaken in compliance with regulations
prescribed under clauses (1) or (2) of this subsection shall result
in liability if intended solely to assist in the acquisition of
copies or phonorecords under this subsection.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2579; Pub.
L. 100-568, Sec. 8, Oct. 31, 1988, 102 Stat. 2859; Pub. L. 105-80,
Sec. 12(a)(11), Nov. 13, 1997, 111 Stat. 1535.)
Historical and Revision Notes
house report no. 94-1476
The provisions of sections 407 through 411 of the bill mark another
departure from the present law. Under the 1909 statute, deposit of
copies for the collections of the Library of Congress and deposit of
copies for purposes of copyright registration have been treated as the
same thing. The bill's basic approach is to regard deposit and
registration as separate though closely related: deposit of copies or
phonorecords for the Library of Congress is mandatory, but exceptions
can be made for material the Library neither needs nor wants; copyright
registration is not generally mandatory, but is a condition of certain
remedies for copyright infringement. Deposit for the Library of Congress
can be, and in the bulk of cases undoubtedly will be, combined with
copyright registration.
The basic requirement of the deposit provision, section 407, is that
within 3 months after a work has been published with notice of copyright
in the United States, the ``owner of copyright or of the exclusive right
of publication'' must deposit two copies or phonorecords of the work in
the Copyright Office. The Register of Copyrights is authorized to exempt
any category of material from the deposit requirements. Where the
category is not exempted and deposit is not made, the Register may
demand it; failure to comply would be penalized by a fine.
Under the present law deposits for the Library of Congress must be
combined with copyright registration, and failure to comply with a
formal demand for deposit and registration results in complete loss of
copyright. Under section 407 of the bill, the deposit requirements can
be satisfied without ever making registration, and subsection (a) makes
clear that deposit ``is not a condition of copyright protection.'' A
realistic fine, coupled with the increased inducements for voluntary
registration and deposit under other sections of the bill, seems likely
to produce a more effective deposit system than the present one. The
bill's approach will also avoid the danger that, under a divisible
copyright, one copyright owner's rights could be destroyed by another
owner's failure to deposit.
Although the basic deposit requirements are limited to works
``published with notice of copyright in the United States,'' they would
become applicable as soon as a work first published abroad is published
in this country through the distribution of copies or phonorecords that
are either imported or are part of an American edition. With respect to
all types or works other than sound recordings, the basic obligation is
to deposit ``two complete copies of the best edition''; the term ``best
edition,'' as defined in section 101, makes clear that the Library of
Congress is entitled to receive copies of phonorecords from the edition
it believes best suits its needs regardless of the quantity or quality
of other U.S. editions that may also have been published before the time
of deposit. Once the deposit requirements for a particular work have
been satisfied under section 407, however, the Library cannot claim
deposit of future editions unless they represent newly copyrightable
works under section 103.
The deposit requirement for sound recordings includes ``two complete
phonorecords of the best edition'' and any other visually-perceptible
material published with the phonorecords. The reference here is to the
text or pictorial matter appearing on record sleeves and album covers or
embodied in separate leaflets or booklets included in a sleeve, album,
or other container. The required deposit in the case of a sound
recording would extend to the entire ``package'' and not just to the
disk, tape, or other phonorecord included as part of it.
Deposits under section 407, although made in the Copyright Office,
are ``for the use or disposition of the Library of Congress.'' Thus, the
fundamental criteria governing regulations issued under section 407(c),
which allows exemptions from the deposit requirements for certain
categories of works, would be the needs and wants of the Library. The
purpose of this provision is to make the deposit requirements as
flexible as possible, so that there will be no obligation to make
deposits where it serves no purpose, so that only one copy or
phonorecord may be deposited where two are not needed, and so that
reasonable adjustments can be made to meet practical needs in special
cases. The regulations, in establishing special categories for these
purposes, would necessarily balance the value of the copies or
phonorecords to the collections of the Library of Congress against the
burdens and costs to the copyright owner of providing them.
The Committee adopted an amendment to subsection (c) of section 407,
aimed at meeting the concerns expressed by representatives of various
artists' groups concerning the deposit of expensive art works and
graphics published in limited editions. Under the present law, optional
deposit of photographs is permitted for various classes of works, but
not for fine prints, and this has resulted in many artists choosing to
forfeit copyright protection rather than bear the expense of depositing
``two copies of the best edition.'' To avoid this unfair result, the
last sentence of subsection (c) would require the Register to issue
regulations under which such works would either be exempted entirely
from the mandatory deposit or would be subject to an appropriate
alternative form of deposit.
If, within three months after the Register of Copyrights has made a
formal demand for deposit in accordance with section 407(d), the person
on whom the demand was made has not complied, that person becomes liable
to a fine up to $250 for each work, plus the ``total retail price of the
copies or phonorecords demanded.'' If no retail price has been fixed,
clause (2) of subsection (d) establishes the additional amount as ``the
reasonable cost to the Library of Congress of acquiring them.'' Thus,
where the copies or phonorecords are not available for sale through
normal trade channels--as would be true of many motion picture films,
video tapes, and computer tapes, for example--the item of cost to be
included in the fine would be equal to the basic expense of duplicating
the copies or phonorecords plus a reasonable amount representing what it
would have cost the Library to obtain them under its normal acquisitions
procedures, if they had been available.
There have been cases under the present law in which the mandatory
deposit provisions have been deliberately and repeatedly ignored,
presumably on the assumption that the Library is unlikely to enforce
them. In addition to the penalties provided in the current bill, the
last clause of subsection (d) would add a fine of $2,500 for willful or
repeated failure or refusal to deposit upon demand.
The Committee also amended section 407 [this section] by adding a
new subsection (e), with conforming amendments of sections 407(a) and
408(b). These amendments are intended to provide a basis for the Library
of Congress to acquire, as a part of the copyright deposit system,
copies or recordings of non-syndicated radio and television programs,
without imposing any hardships on broadcasters. Under subsection (e) the
Library is authorized to tape programs off the air in all cases and may
``demand'' that the broadcaster supply the Library with a copy or
phonorecord of a particular program. However, this ``demand'' authority
is extremely limited: (1) The broadcaster is not required to retain any
recording of a program after it has been transmitted unless a demand has
already been received; (2) the demand would cover only a particular
program; ``blanket'' demands would not be permitted; (3) the broadcaster
would have the option of supplying the demand by gift, by loan for
purposes of reproduction, or by sale at cost; and (4) the penalty for
willful failure or refusal to comply with a demand is limited to the
cost of reproducing and supplying the copy or phonorecord in question.
Amendments
1997--Subsec. (d)(2). Pub. L. 105-80 substituted ``cost to the
Library of Congress'' for ``cost of the Library of Congress''.
1988--Subsec. (a). Pub. L. 100-568 struck out ``with notice of
copyright'' before ``in the United States''.
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any cause
of action arising under this title before such date being governed by
provisions in effect when cause of action arose, see section 13 of Pub.
L. 100-568, set out as a note under section 101 of this title.
Deposits and Registrations Made After December 31, 1977, in Response to
Demand Under Predecessor Demand and Penalty Provisions
Section 110 of Pub. L. 94-553 provided that: ``The demand and
penalty provisions of section 14 of title 17 as it existed on December
31, 1977, apply to any work in which copyright has been secured by
publication with notice of copyright on or before that date, but any
deposit and registration made after that date in response to a demand
under that section shall be made in accordance with the provisions of
title 17 as amended by the first section of this Act.''
Section Referred to in Other Sections
This section is referred to in sections 408, 704, 708 of this title;
title 2 section 170.
