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Copyrights - 17 USC Section 407
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01/19/04
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.
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."
Last modified: April 20, 2006
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