On July 15th, the Copyright Office published a Federal Register Notice proposing to amend Copyright Office regulations governing mandatory deposit of electronic works that are published in the United States and available only online.
Under the present regulations the Copyright Office practice has been to exempt from the deposit requirement all electronic works that are published only online. These regulations are applicable to Section 407 of the Copyright Act, which provides that the owner of a copyright in a work published in the United States is required to deposit two complete copies of the best edition of the work with the Copyright Office for the use or disposition of the Library of Congress. A deposit under Section 407 must be made within three months after such publication. Failure to deposit the copies does not affect copyright in the work, but it may subject the copyright owner to fines and other monetary liability if a demand for deposit of the work is made by the Register of Copyrights and the owner fails to comply with the demand. As a result, in practice, these works are not normally submitted to the Copyright Office unless and until a demand is made by the Office.
Section 407 should not be confused with Section 408. Section 407 applies to all copyrighted works that are not registered with the Copyright Office. Section 408 applies to only those works that are registered with the Copyright Office and requires any work that is registered to be deposited.
Unlike Section 408, Section 407 allows the Register of Copyrights to (by regulation) exempt certain works from the deposit requirements or to require deposit of only one copy. These regulations can be found in Section 202 of Title 37 of the Code of Federal Regulations (CFR). Significantly, Section 202.19(c)(5) of these regulations exempted “automated databases available only online in the United States.”
The term “automated database,” is not defined in the Copyright Act or regulations. For reasons explained in the Federal Register Notice, the Copyright Office practice has been (for purposes of mandatory deposit) to interpret the term “automated database” broadly to encompass all electronic works published only online. As result, all online-only works – even those that do not fall within general understanding of what an “automated database” is -- have been exempted under the regulation. The Copyright Office now seeks to rectify this by revising the regulations to replace this automated database category with the more accurate “electronic works published in the United States and available only online.”
The proposed amendments would change current practice by permitting the Copyright Office to issue a demand for copies of works published only online. The revised regulations would also establish the process for issuing and responding to a Copyright Office demand, amend the definition of a “complete copy” of a work for purposes of mandatory deposit of online–only works, and establish new best edition criteria for electronic serials available only online.
The Copyright Office is seeking public comment on these proposed regulation change. These comments are due on August 31st.