Industry & Advocacy News
September 22, 2023
People are often surprised to learn that there are two separate requirements under federal law related to submitting copies of works to the U.S. Copyright Office. First, when applying to register a copyright, copies must be submitted as part of the registration process. Second, the copyright owner of a work published in the United States is also generally required to submit one or more copies to the Copyright Office, even if they do not register the copyright. This separate requirement is known as “mandatory deposit.” While one set of copies can fulfill both the registration and mandatory deposit requirements, they are distinct legal obligations.
These copies are ultimately intended not for the Copyright Office, but for the Library of Congress, the Office’s parent agency. For decades, the Library has relied on mandatory deposit to maintain and grow its collections—currently estimated at over 175 million items. This past August, however, the future of this system was called into question when a federal appeals court held that the mandatory deposit requirement is unconstitutional as currently applied.
The lawsuit arose after the Copyright Office sent a “demand letter” to Valancourt Books, a small independent press that publishes rare and out-of-print fiction. The letter instructed Valancourt to deposit one complete copy of 341 of its books. Failure to do so, the Office explained, would make Valancourt liable for a fine of up to $250 per work and the total retail price of the copies demanded, as well as an additional fine of $2,500 for a willful and repeated failure to comply. Valancourt responded that it could not afford the cost of printing and shipping the books and requested that the Office withdraw its demand. After further discussion, the Office reduced its demand to 240 books, but did not withdraw it altogether. Valancourt then filed suit, arguing that the mandatory deposit requirement violates the Constitution’s Takings Clause, which bars the government from appropriating property without just compensation.
While the case was underway, the government offered to settle the dispute by agreeing to accept electronic copies of the books in lieu of physical copies. Valancourt rejected the offer. The parties then asked the court to decide the case on summary judgment, and in July 2021, the court ruled in favor of the government. It held that mandatory deposit does not violate the Takings Clause because it involves a voluntary transfer: Valancourt received copyright protection from the government in exchange for the copies. The court found it significant that Valancourt placed copyright notices on its books and refused to disavow its copyrights after the government offered that option as a way to avoid the deposit obligation.
On August 29, the D.C. Circuit Court of Appeals reversed the decision, holding that the mandatory deposit requirement as applied to Valancourt in this case involves an unconstitutional taking. It took a dim view of the government’s argument that mandatory deposit is a voluntary exchange, pointing out that copyright protection arises when a work is created, not when copies are deposited to the Copyright Office. If a copyright owner fails to comply with the deposit requirement, they are subject to fines but do not lose their copyright. “Tellingly,” the court noted, “the government cannot point to a single incremental benefit that copyright owners receive for depositing works” under the statute.
Importantly, the court’s ruling applies only to the mandatory deposit of physical copies. The court declined to decide whether takings concerns would arise if the Copyright Office changed its practices to require only the submission of electronic copies. In addition, the court suggested that the deposit obligation might be permissible if the government offered a “simple, seamless, and transparent way to opt out of copyright protection.” In that circumstance, “any forfeiture of property might arguably be voluntary.” It remains to be seen whether the Copyright Office will take up either of these possible alternatives.
It is also unclear what impact the court’s decision may have on registration deposits—copies submitted to the Office as part of a copyright registration application. Under current law, applicants are required to submit “best edition” copies, which are defined as those that the Library determines to be most suitable for its purposes. Historically, that has generally meant physical copies, which can be costly and burdensome for authors. If the Library decides to accept electronic copies for purposes of mandatory deposit as a result of the court’s decision, presumably electronic copies will be acceptable for registration purposes as well. We will be watching the next steps closely.
For now, we understand that most traditional publishers will continue to submit best edition copies. For those of you who have self-published books and have been submitting copies per mandatory deposit but would prefer not to do so going forward, please contact the Guild for guidance.
Authors Guild members can submit a legal request here.
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