Mandatory Copyright Deposit

Mandatory Copyright Deposit – Must You Comply?


An author recently contacted me about a letter they received from the Office of the Register of Copyrights. It was a Notice for Mandatory Deposit of Copies of her book for the use of the Library of Congress. The author thought it was a scam to get free books.

My first response was: “It’s not a scam.” My second response was: “Lucky you.”

And I meant it. Why? Because the Library of Congress wanted her book for their collection. Not bad being included in the world’s largest library and America’s national library.

What is the Mandatory Copyright Deposit Provision?

Mandatory depositing is a little-known provision of the United States Copyright Act. Section 407 requires a copyright owner of a work published in the United States to send two copies of their work to the Copyright Office within three months after publication. If compliance with the mandatory deposit requirement is not met within three months of publication in the United States, the Register of Copyrights may “facilitate, demand, negotiate, or exempt” the provision of copies to ensure that the Library of Congress can obtain the published work for its collection or for exchange with or transfer to any other library. Failure to submit the required two copies by the deadline could mean penalties for the negligent author.

The Mandatory Deposit Provision is not new. The law has been around since the early 1800s and with the sole purpose of helping the Library of Congress build its collection of published works. Accordingly, the Library of Congress is entitled to copies of every published work in the US. And the US copyright law gives the Library of Congress the right to get your book from you for free.

That does not mean the Library of Congress collects EVERYTHING that has been published. In truth, the Library of Congress does not want two copies of every published work. But, these provisions allow the Copyright Office to procure published works for the Library of Congress should the Library want them. And when they do, it is mandatory that you respond.

Is mandatory deposit different from the copyright registration deposit?

Copyright registration with the US Copyright Office requires the applicant deposit of two copies of the book. The Mandatory Deposit Provision, however, is independent of the registration deposit requirement. Mandatory deposits apply to all works that are published in the US (minus a few exceptions, see below) regardless of whether the author filed for copyright registration.

What are you required to submit to the Library of Congress?

You must submit the “best edition” of the work. To quote the Copyright Act, best edition equals “the edition published in the United States at any time before the date of deposit that the Library of Congress determines to be most suitable for its purposes.”

I know, still vague, right? For guidance in determining which edition of a work constitutes the best edition, see the Copyright Office’s publication: Best Edition of Published Copyrighted Works for the Collections of the Library of CongressIn general, if there are two or more editions of a book, the best edition is the most current. Likewise, the best edition is the one of higher quality. The above publication has criteria you can use when making your determination, like:

  • Archival-quality rather than less-permanent paper
  • Hardcover rather than softcover
  • Library binding rather than commercial binding
  • Trade edition rather than book club edition
  • Sewn rather than glue-only binding
  • Sewn or glued rather than stapled or spiral-bound
  • Stapled rather than spiral-bound or plastic-bound
  • Bound rather than loose-leaf

If you are still unsure about which published edition constitutes the best edition, contact the Copyright Acquisitions Division at cad@copyright.gov or (202) 707-7125.

What are you NOT required to submit to the Library of Congress?

As with most laws, there are exceptions. The Mandatory Deposit Provision exempts some categories that are not considered useful for the Library of Congress. Included in these are:

  1. unpublished works,
  2. works that are published solely online (i.e., have no physical counterpart),
  3. foreign works that have not been published in the United States, and
  4. works that are not suitable for use by the Library of Congress (i.e., fall outside the collecting priorities of the Library).

What to do if you receive a Notice for Mandatory Deposit?

You have two options.

  1. Comply by providing the Library of Congress with two copies of the best edition of your book. You can accomplish that task by:
    • Sending copies directly to the Library of Congress, or
    • Filing an application to register the work with the US Copyright Office. Registration requires you deposit two copies of the best edition of the work with your application. When you do, you will not only have a copyright registration but you will have satisfied the mandatory deposit requirement for the Library of Congress. Two birds. One stone.
  2. Apply to the Register of Copyrights for relief from the mandatory deposit requirement. But be advised, your written request must show compliance poses an undue burden or cost. For example, works that are difficult to deposit (paintings, sculptures, anything with a limited number) would qualify as an undue burden to deposit. If a book has a small print run or all copies have been distributed, then depositing would force the author or publisher to incur undue costs.

What happens if you do not comply?

Ah, you thought there was a third option. And there is. But it has a price.

If you choose noncompliance, there is no jail time, but there is the possibility of being fined up to $250 per work, plus payment to the Library of Congress of the total retail price of the work in question (presumably because the Library of Congress must buy the work instead of receiving it free from you). Should you decide to be willful and continue to avoid deposit, additional fines of up to $2500 can be imposed.

What if you are traditionally published?

If you are published by one of the large publishing houses, they will have filed a copyright registration for you and submitted two copies of your book to the Copyright Office. Such a deposit will satisfy the mandatory deposit requirement for the Library of Congress.

What if you are self-published?

If you are self-published or published by a small imprint, and you have not filed for copyright registration, you may receive a Notice of Mandatory Deposit. If so, comply by sending copies to the Library of Congress or filing for a copyright registration with the US Copyright Office. Then, open a yummy bottle of wine and congratulate yourself. The Library of Congress does not ask every author to submit his or her book to be included in the Library’s collection.

 


Photo Credit: Onasill ~ Bill Badzo | Foter.com | CC BY-NC-SA

Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.

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