Legal deposit in four countries: Laws and library services

Law Library Journal

Volumn 80, Issue 4, 1988, Pages 551-576

  Crews, Kenneth D ^a,b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b State Bar of California ^*  (United States)

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[No Author keywords available]

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EID: 56949084544     PISSN: 00239283     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (240)

1. Humphreys, National Library Functions, 20 UNESCO BULL., FOR LIBR. 158, 159 (1966).
2. See J. LUNN, GUIDELINES FOR LEGAL DEPOSIT LEGISLATION § 3.2.2 (1981).
3. Humphreys, supra note 1, at 160 ("in every country at least one copy of everything printed or published should be legally required to be deposited in the national library").
4. See J. LUNN, supra note 2, at § 1. The relationship of legal deposit to copyright law sometimes leads to discussion of two separate concepts: legal deposit and copyright deposit. Copyright deposit, under that analysis, is the deposit of works in connection with registering for and receiving copyright protection. By definition, it encompasses all works eligible for copyright. Legal deposit is for building library collections apart from copyright issues; it is often narrowly proscribed to meet the library's needs. SUBCOMM. ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF SENATE COMM. ON THE JUDICIARY, 86TH CONG., 2D SESS., STUDIES PURSUANT TO S. RES. 240, STUDY 20, DEPOSIT OF COPYRIGHTED WORKS (Comm. Print 1960) (prepared by J. Dunne) [hereinafter DEPOSIT OF COPYRIGHTED WORKS].
5. S.C. § 408(b) (1982).
6. Copyright Act, 1911, 1 & 2 Geo. 5, ch. 46, § 15 (1).
7. Id. § 15(2).
8. For summaries of legal deposit laws in various countries, see M. BEAUDIQUEZ, BIBLIOGRAPHICAL SERVICES THROUGHOUT THE WORLD, 1975-1979 (1984);
9. G. POMASSL, SURVEY OF EXISTING LEGAL DEPOSIT LAWS (1977). American law and legal commentators generally have downplayed the value of legal deposit as a means for developing a library.
10. See, e.g., Levine & Squires, Notice, Deposit and Registration: The Importance of Being Formal, 24 UCLA L. REV. 1232, 1254 (1977) (emphasizing the need to create a "complete and accurate public record of who owns what"). The United States Supreme Court held in 1939 that deposit of copies is not required primarily in order to insure a complete, permanent collection of all copyrighted works open to the public. Deposited copies may be distributed or destroyed under the direction of the Librarian and this is incompatible with the notion that copies are now required in order that the subject matter of protected works may always be available for information and to prevent unconscious infringement. Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 38-39, reh'g denied, 306 U.S. 668 (1939) (footnote omitted).
11. Humphreys, supra note 1, at 160-61 (regarding legal deposit as a "fundamental" or "essential" activity of national libraries).
12. For a diagram revealing the interrelationships of national library functions, see A. AL-NAHARI, THE ROLE OF NATIONAL LIBRARIES IN DEVELOPING COUNTRIES WITH SPECIAL REFERENCE TO SAUDI ARABIA 55 (1984).
13. Many commentators, and sometimes the statutes themselves, acknowledge that legal deposit leads to preparation of bibliographies, see J. LUNN, supra note 2, at § 3.1, but few writers have considered other possible library services. For an example of one such commentator's view, see Tottie, Introduction, 18 BULLETIN: LIGUE DES BIBLIOTHÈQUES EUROPÉENNES DE RECHERCHE 6 (1982).
14. A. ESDAILE, NATIONAL LIBRARIES OF THE WORLD 56 (2d ed. 1957).
15. Id. at 50.
16. Scholars disagree on whether Francois's motives were to benefit the library or to impose a new form of censorship. Some writers show that Francois attempted to create a strong library for use by French scholars as a result of legal deposit. See, e.g., R. KNECHT, FRANCIS I, at 272-73 (1982);
17. Martin, Livres el Sociêté, in 1 HISTOIRE DE L'EDITION FRANÇAISE 543, 548 (H. Martin & R. Chartier ed. 1982). Others emphasize that the purpose of the original system was censorship.
18. See, e.g., Bjerregård, Legal Deposit-Purpose and Scope in Modern Society, 23 LIBRI 331, 331 (1973).
19. Whatever the purpose of the original deposit, the history of publishing leaves little doubt that Francois instituted many censorship measures. See E. ARMSTRONG, ROBERT ESTIENNE: ROYAL PRINTER 165-69 (1954).
20. A. ESDAILE, supra note 12, at 56.
21. Id. at 57;
22. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 1 n.4.
23. Censorship possibilities of legal deposit were not lost in other countries: "As the idea spread throughout the various nations astute law-makers saw in legal deposit an effective means of curbing the publication of blasphemous and seditious literature, that harbinger of discontent and revolution." R. PARTRIDGE, THE HISTORY OF THE LEGAL DEPOSIT OF BOOKS THROUGHOUT THE BRITISH EMPIRE 3 (1938).
24. See also A. ESDAILE, supra note 12, at 57.
25. A. ESDAILE, supra note 12, at 50.
26. See R. KNECHT, supra note 14, at 272.
27. The Press Licensing Act was England's first statutory legal deposit. An Act for Preventing Abuses in Printing Seditious, Treasonable, and Unlicensed Books and Pamphlets and for Regulating of Printing and Printing-Presses, 1662, 14 Car. 2, ch. 33, § 4. In 1610 the Company of Stationers in London entered into an agreement with the Bodleian Library to provide it with a copy of each book published by a member of the Company. The agreement was severely flawed and not enforceable. R. PARTRIDGE, supra note 17, at 17-20.
28. See An Act for the Encouragement of Learning, ch. XV, § 4, 1 Stat. 124, 125 (1790).
29. The deposit collection in the United States developed slowly, as recorded in an account from 1850: Since May 31, 1790, when the first copyright act was passed, books and other articles have been accumulating in the State Department, deposited there in accordance with the provisions of the law. They number at present about 10,000 volumes, besides maps and charts; over 3,000 pieces of music, and more than 800 lithographic prints and engravings. The average annual increase of books for the last ten years has been about 400 volumes. These articles are kept in two rooms in the State Department, each about 18 by 21 feet and 12 feet high. They are arranged in close presses, according to their subject-matter. There is no complete catalogue. The rooms are open from 9 o'clock a.m. to 3 p.m. on office days. The books are not lent out. But few persons consult the library-probably not more than 50 a year. FOURTH ANNUAL REPORT OF THE BOARD OF REGENTS OF THE SMITHSONIAN INSTITUTION 138-42 (1850).
30. See TENTH ANNUAL REPORT OF THE BOARD OF REGENTS OF THE SMITHSONIAN INSTITUTION 30 (1856);
31. NINTH ANNUAL REPORT OF THE BOARD OF REGENTS OF THE SMITHSONIAN INSTITUTION 21, 24 (1855);
32. SIXTH ANNUAL REPORT OF THE BOARD OF REGENTS OF THE SMITHSONIAN INSTITUTION 36-37 (1852);
33. FIFTH ANNUAL REPORT OF THE BOARD OF REGENTS OF THE SMITHSONIAN INSTITUTION 30, 39 (1851);
34. FOURTH ANNUAL REPORT OF THE BOARD OF REGENTS OF THE SMITHSONIAN INSTITUTION 32-35 (1850).
35. J. ROGERS, U.S. NATIONAL BIBLIOGRAPHY AND THE COPYRIGHT LAW 21-29 (1960).
36. Harris, Jewett, Charles Coffin, in DICTIONARY OF AMERICAN LIBRARY BIOGRAPHY 271, 273 (1978).
37. Cf. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 1 (two purposes of legal deposit: to identify copyrighted works and to provide publications to the Library of Congress).
38. See J. LUNN, supra note 2, at § 3.4.
39. Burston, National Libraries: An Analysis, 5 INT'L LIBR. REV. 183, 188 (1973).
40. For an early example of the Library of Congress called a national library, see ANNUAL REPORT OF THE BOARD OF REGENTS OF THE SMITHSONIAN INSTITUTION FOR THE YEAR 1868, at 41 (1869).
41. For an influential outline of "fundamental" national library functions, see Humphreys, supra note 1, at 158-69. Many other writers have outlined basic functions of national libraries. See, e.g., A. AL-NAHARI, supra note 10, at 8-10;
42. Magnussen, The Functions and Planning of a National Library, in NATIONAL LIBRARIES 7, 11 (1963) (published by the Library Association);
43. Thompson, Some Recent Trends in National Library Buildings, 24 LIBRI 69 (1974).
44. The Role of National Libraries in National and International Information Systems, 31 UNESCO BULL, FOR LIBR. 7, 14-15 (1977).
45. See Staff of the Library of Congress, The Library of Congress as the National Library: Potentialities for Service, in LIBRARIES AT LARGE: TRADITION, INNOVATION, AND THE NATIONAL INTEREST 435, 444-45 (1969).
46. See also 17 U.S.C. § 408 (1982).
47. A. ESDAILE, supra note 12, at 292-93.
48. See Anderson, The Role of the National Bibliographic Centre, 25 LIBR. TRENDS 645, 651 (1977). Although Anderson credits the Processing Department at the Library of Congress with performing many services of a bibliographic information center, she notes that no such center has been specifically established at the Library. Id. at 650.
49. See generally 1 W. KATZ, INTRODUCTION TO REFERENCE WORK 60-61 (5th ed. 1987).
50. One article identified four elements of legal deposit: time of deposit, type of publications deposited, person responsible for making deposits, and penalties for noncompliance. See Gorman, Current National Bibliographies in Developing Countries of the Commonwealth, 33 LIBRI 177, 188 (1983).
51. See J. LUNN, supra note 2, at § 2.1.
52. See 17 U.S.C. § 407(a).
53. Id. The basic definition of "publication" in the Copyright Act is "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending." Id. at § 101. Apart from the deposit provisions of § 407, the Copyright Office receives many deposits in conjunction with the registration provisions of § 408 of the Copyright Act. Indeed, some works outside the scope of § 407-particularly unpublished works-may be deposited only by means of registration. See id. at § 408(b).
54. See also COMPENDIUM OF COPYRIGHT OFFICE PRACTICES § 801-10 (1984); infra note 55. A related statute provides for the deposit of materials pertaining to semiconductor chips.
55. See Semiconductor Chip Protection Act of 1984, § 908(c), 17 U.S.C. § 908(c) (1985);
56. 37 C.F.R. § 211.5 (1986). For a general overview of American law related to legal deposit, see 2 M. NIMMER, NIMMER ON COPYRIGHT §§ 7.16-7.17[F] (1988).
57. See 17 U.S.C. § 407(a).
58. See id. See also supra note 39.
59. See Copyright Act, 1911, 1 & 2 Geo. 5, ch. 46, § 15(7). A separate British statute also requires deposit of scripts of any new play having a public performance in the country. Theatres Act, 1968, ch. 54, § 11.
60. Bell, Legal Deposit in Britain (Part 2), 8 LAW LIBR. 22, 24 (1977).
61. Law No. 341, art. 1, 21 June 1943, J.O. 1 July 1943 ("Les imprimés de toute nature (livres, périodiques, brochures, estampes, gravures, cartes postales illustrées, affiches, cartes de géographie et autres), les oeuvres musicales, photographiques, cinématographiques, phonographiques, mises publiquement en vente, en distribution ou en location ou cédées pour la reproduction, sont soumis à la formaüté du dépôt légal"). See also Decree No. 77-535, 23 May 1977, J.O. 27 May 1977, J.O. 15 June 1977 (establishing procedures for cinematographic works);
62. Decree No. 75-696, 30 July 1975, J.O. 5 August 1975 (extending the law to multimedia and audiovisual works);
63. Decree No. 63-796, 1 August 1963, J.O. 6 August 1963;
64. Decree No. 75-319, 5 May 1975, J.O. 7 May 1975 (establishing procedures for phonographic records).
65. See Law No. 341, art. 5-10, 21 June 1943, J.O. 1 July 1943;
66. J. FERGUSON, LIBRARIES IN FRANCE 18 (1971).
67. See generally 17 U.S.C. § 601; Rayward, Manufacturing and Copyright: Past History Remaking, 3 J. LIBR. HIST. 7 (1968);
68. Reilly, The Manufacturing Clause of the U.S. Copyright Law: A Critical Appraisal of Some Recent Studies, 32 J. COPYRIGHT SOC'Y 109 (1984).
69. See 17 U.S.C. § 601. Although once dismissed as "dead in the water," some members of the U.S. Congress have sought revival of the clause. Fields, Senators Prepare Bills To Extend Mfg. Clause, PUBLISHERS WEEKLY, Sept. 12, 1986, at 20. Indeed, members of Congress introduced two bills in the following Congress to modify and extend the manufacturing clause, but no further action was taken. S. 1785, 100th Cong., 1st Sess. (1987)
70. H.R. 2956, 100th Cong., 1st Sess. (1987).
71. Cf. J. LUNN, supra note 2, at § 3.2.5.
72. All types of libraries often have written policies describing the scope and nature of materials collected. See generally R. GARDNER, LIBRARY COLLECTIONS: THEIR ORIGIN, SELECTION, AND DEVELOPMENT 221-31 (1981).
73. C. GOODRUM & H. DALRYMPLE, THE LIBRARY OF CONGRESS 69-70, 197-99 (1982).
74. Bell, supra note 43, at 24. Some commentators are skeptical of any legal deposit law reaching motion pictures and television broadcasts: "It would be difficult to persuade production and television companies to deposit expensive prints or negatives and no one organisation could cope." Harrison, Bibliographic Control of Archival Film and Photographic Material, 78/79 CATALOGUE & INDEX 1, 4 (1985).
75. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 5 n.16.
76. See 17 U.S.C. § 407(a) (The statute does not specify data bases, but they are within the broad scope of applicable materials.).
77. Interview with Dorothy Schrader, General Counsel of the United States Copyright Office, Washington, D.C. (July 8, 1986) [hereinafter Interview with Dorothy Schrader].
78. U.S. Copyright Office regulations allow deposit of only "identifying portions" of many computer programs and data bases even when they are registered with the Copyright Office. See 37 C.F.R. § 202.20(c)(2)(vii) (1987).
79. See also 37 C.F.R. § 202.19(c)(5) (1987) (exempting machine-readable programs and data bases entirely, when not registered with the Copyright Office);
80. Horwitz, Proposed Changes in the Regulations Governing Deposits of Computer Programs with the Copyright Office, 26 JURIMETRICS J. 305 (1986). Regulations allowing deposit of only portions of a work have survived legal and constitutional challenges
81. See National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 692 F.2d 478, 483 (7th Cir. 1982), cert, denied, 464 U.S. 814 (1983).
82. From computers and data bases, the development of electronic publishing creates an additional set of problems resulting not only from the format, but also from the concepts of "published" and "edition." Girard, La Presse Electronique el les Bibliothèques, 14 INT'L CATALOGING 47, 47-48 (1985).
83. See J. LUNN, supra note 2, at § 3.2.3.
84. See id. at § 5.1 ("The traditionalists assert that everything should be claimed and point to apparently insignificant matter which later assumes historical value."). On the other hand, the UNESCO study advocates collecting confidential materials if they have been published or released even to a limited group. See id. § 5.3.1.
85. See, e.g.. Law No. 341, art. 8, 21 June 1943, J.O. 1 July 1943.
86. As a practical matter, legal deposit should extend only to those works over which the law may have jurisdiction and which the library can reasonably seek enforcement, although some proposals advocate a sweeping scope of deposit materials. See J. LUNN, supra note 2, at §§ 3.2, 5. A UNESCO study of national libraries concluded that legal deposit "should not leave out of account privately printed publications." The report acknowledged special problems with such materials as newspapers, photographs, films, records, and recording tapes. See NATIONAL LIBRARIES 42 (1960) (UNESCO Symposium on National Libraries in Europe). Under American law, the Copyright Office may exempt certain materials from the deposit requirement. See 17 U.S.C. § 407(c).
87. See also 37 C.F.R. § 202.19(c) (1987). Congress made clear its intent to create a flexible law by allowing exemptions: 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. H.R. REP. NO. 1476, 94th Cong., 2d Sess. 151, reprinted in 1976 U.S. CODE CONG. & ADMIN. NEWS 5659, 5767 [hereinafter HOUSE REPORT). See also REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW 78-79 (Comm. Print 1961);
88. NATIONAL LIBRARIES 35 (1960) (national libraries should receive all works and be free to retain or transfer items as desired). Exceptions to the general deposit requirement have survived legal challenges. See, e.g., National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 692 F.2d at 483; Atari, Inc. v. Amusement World, Inc., 547 F. Supp. 222, 227 (D. Md. 1981) (allowed deposit of only one copy of videotape). British law also allows the British Library Board to specify exceptions to the deposit requirement. See British Museum Act, 1932, 22 & 23 Geo. 5, ch. 34, § 1(1); British Library Act, 1972, ch. 54, § 4(l)(a); S.R. & O. 1935, No. 278. French law also allows exceptions. See Law No. 341, art. 2, 21 June 1943, J.O. 1 July 1943.
89. See 17 U.S.C. § 201(a).
90. See id. at § 407(a) ("the owner of copyright or of the exclusive right of publication in a work published with notice of copyright in the United States shall deposit"). See also id. at § 408(a) ("the owner of copyright or of any exclusive right in the work" may register and deposit copies of the work).
91. See 1 & 2 Geo. 5, ch. 46, § 15.
92. See Godet, Le Depot Volontaire en Suisse, 35 REVUE DES BIBLIOTHÈQUES 298, 298-99 (1928).
93. Some countries have required deposits from printers only and not from publishers. According to a UNESCO study, "One difficulty noted was the fact that in some countries it was only the printer, and not the publisher, who was required to make legal deposit, and hence books printed abroad might be omitted from the national bibliography." NATIONAL LIBRARIES, supra note 59, at 76. Scandinavian countries generally require deposits only from printers. Hence, the libraries receive a great deal of "small print" matter, and only one-fifth of all received material eventually ends up in the national bibliography. Hesselager, "The Dust of One Age Is the Gold of Another": Om pligtafleverings-bestemmelserne, 67 NORDISK TIDSKRIFT FÖR BOK-OCH BIBLIOTEKSVÄSEN 33, 54 (1980).
94. See J. LUNN, supra note 2, at § 12 (implying that printers may be the most appropriate depositors, arguing that printers may be easier to "inform and monitor," easier to designate, and more willing to make deposits before the publication date).
95. See 17 U.S.C. § 408.
96. Id.
97. 1 & 2 Geo. 5, ch. 46, § 15(1).
98. Law No. 341, art. 12, 21 June 1943, J.O. 1 July 1943; Decree No. 60-1331, art. 1, 21 November 1960, J.O. 15 December 1960.
99. Law No. 341, art. 12-13, 21 June 1943, J.O. 1 July 1943; G. POMASSL, supra note 8, at 34.
100. Law No. 341, art. 12-13, 21 June 1943, J.O. 1 July 1943. See also G. POMASSL, supra note 8, at 34;
101. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 6.
102. See U.S. CONST, amend. I.
103. See generally Errera, Press Law in France, in PRESS LAW IN MODERN DEMOCRACIES 137 (P. Lahav ed. 1985).
104. See Decree No. 1720, 21 June 1943, J.O. 1 July 1943;
105. Decree No. 60-1331, 21 November 1960, J.O. 15 December 1960;
106. G. POMASSL, supra note 8, at 34.
107. See also Order (Arrêté), 12 October 1943, J.O. 14 October 1943 (at pp. 2659-60, modifying Decree No. 1720);
108. Order (Arrêté), 4 August 1943, J.O. 17 August 1943 (at p. 2169, modifying Decree No. 1720);
109. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 7.
110. 17 U.S.C. § 407(b). Section 408 sets forth the registration provisions and states in general that materials "deposited for the Library of Congress under section 407 may be used to satisfy the deposit provisions of this section." Id. at § 408(b). Materials delivered to the Copyright Office as part of a registration under § 408 can also make their way to the Library of Congress. Id. at § 704.
111. 1 & 2 Geo. 5, ch. 46, § 15(1);
112. British Library Act, 1972, ch. 54, § 4(1).
113. See 1 & 2 Geo. 5, ch. 46, § 15; E. SKONE JAMES, J. MUMMERY & J. RAYNER JAMES, COPINGER AND SKONE JAMES ON COPYRIGHT 912-13 (12th ed. 1980) [hereinafter E. SKONE JAMES]; J. LUNN, supra note 2, at §7.3.
114. Several other United Kingdom libraries formerly received legal deposit materials. Parliament replaced the privilege for Glasgow University with a subsidy in 1836, and a recent study argues that the subsidy better served the interests of the library and its patrons. Miller, The Effect of the Loss of Copyright Privilege on Glasgow University Library, 1790-1858, 7 LIBR. HIST. 45, 55-57 (1985).
115. See also R. PARTRIDGE, supra note 17, at 33-34;
116. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 3-4. An additional reason for multiple depositories is to ensure survival of a comprehensive collection even if one library suffers a fire or other destruction. Bell, supra note 43, at 25.
117. See J. LUNN, supra note 2, at § 7.3.
118. See also Law No. 49-956, art. 6, 16 July 1949, J.O. 19 July 1949 (requires a deposit of five copies of any children's or youth literature with the Ministry of Justice);
119. J. FERGUSON, supra note 45, at 18;
120. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 6. For works published or printed outside Paris, deposits go to the local prefecture instead of to the Ministry of the Interior. Law No. 341, art. 5 & 8, 21 June 1943, J.O. 1 July 1943.
121. See also Order (Arrêté), 4 October 1943, J.O. 14 October 1943 (at p. 2660, listing regional depositories).
122. See Law No. 341, 21 June 1943, J.O. 1 July 1943;
123. J. LUNN, supra note 2, at § 7.3.
124. See also G. POMASSL, supra note 8, at 34;
125. J. FERGUSON, supra note 45, at 18.
126. See J. FERGUSON, supra note 45, at 17-18;
127. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 6-7.
128. That one library in France is the Bibliothèque Nationale; in the United States, the Library of Congress; and in Switzerland, the Swiss National Library.
129. See J. LUNN, supra note 2, at § 7.2.
130. In 1977 Iceland reduced the number of deposit copies to four, thereby greatly diminishing the national library's exchange program. Hill, The National Library of Iceland: Its Development and Organization, 17 J. LIBR. HIST. 453, 458-59(1982).
131. See J. LUNN, supra note 2, at § 13.7.
132. See generally Bjerregård, supra note 14, at 339-41.
133. See Law No. 341, art. 12-13, 21 June 1943, J.O. 1 July 1943;
134. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 6.
135. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 6-7.
136. The Copyright Act originally specified a fine of five pounds. See 1 & 2 Geo. 5, ch. 46, § 15(6). In 1977 Parliament raised such small penalties to twenty-five pounds. See Criminal Law Act, 1977, §§ 31(5) & (6). Now, by virtue of the Criminal Justice Act, 1982, § 46, the fine is not to exceed "level 1 on the standard scale," or 50 pounds, plus the value of the book. 24 Halsbury Stat. 155-56 (4th. ed. 1986). British Library officials have admitted that the penalty is seldom pursued; buying the book is cheaper. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 5 n.17.
137. 17 U.S.C. § 407(d).
138. See id. § 407(a). Making deposits with registrations under § 408 is also not a prerequisite to obtaining copyright protection. Id. at § 408(a). Congress explained that separating deposits from copyright protection will "avoid the danger that, under a divisible copyright, one copyright owner's rights could be destroyed by another owner's failure to deposit." HOUSE REPORT, supra note 59, at 150. Because the law requires deposit from copyright owners or exclusive publishers, Congress similarly avoided the loss of an owner's rights in the event that the publisher failed to make deposits. See generally 17 U.S.C. §§ 407(a) & 408(a).
139. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 30.
140. Interview with Dorothy Schrader, supra note 54.
141. See DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 2. According to one analysis of French law, copyright is not a political instrument, but rather a stimulation of creativity. Thus, protection should not be denied for violations of formalities, such as legal deposit.
142. See Debois, Proprièté Litteraire et Artistique, in 7 REPERTOIRE DE DROIT CIVIL. ¶ 7 (1976). The Berne Convention, originally signed in 1886, is a treaty providing international protection of copyright. The United States is not a party to it. See generally 3 M. NIMMER, supra note 39, at § 17.04[D].
143. See 17 U.S.C. § 408. Although registration is now optional under current American law, some uncertainty about the law's interpretation has led to an increase in registrations. Interview with Dorothy Schrader, supra note 54. Despite the language of the 1909 U.S. Copyright Act requiring "prompt" deposits, the Supreme Court ruled in 1939 that failure to deposit copies did not result in a loss of copyright privileges.
144. See Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, reh'g denied, 306 U.S. 668 (1939).
145. See also Comment, Copyright Laws-Requirement of Prompt Deposit in Copyright Office, 27 GEO. L.J. 587 (1939);
146. Note, Promptness of Deposit Copies in Copyright, 8 GEO. WASH. L. REV. 184 (1939-40);
147. Case Note, Copyrights-Depositing of Copies-Change Effected by 1909 Act, 13 S. CAL. L. REV. 136 (1939);
148. Comment, Copyright - Procedure for Perfecting-Time of Deposit of Copies, 24 WASH. U.L.Q. (1939). A recent decision construing the 1909 Copyright Act held that deposit was not required except as "merely a limitation on the ability to bring an action for infringement at a particular time." Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1342-43 (9th Cir. 1981).
149. See also Annotation, Requirements as to Deposit of Copies of Work in Copyright Office Under § 13 of Federal Copyright Act (17 USCS § 13) as Prerequisite to Infringement Action, 16 A.L.R. FED. 595 (1973).
150. See E. SKONE JAMES, supra note 77, ¶ 916; Bell, supra note 43, at 26. As alluded to previously in this article, another important issue in the relationship between copyright and legal deposit is the use of copyright to define the scope of materials subject to the deposit requirement. See supra text accompanying notes 39-41.
151. See DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 5 n.17.
152. As examples of alternatives to deposit, the Copyright Office of the Library of Congress tapes some television shows off the air and arranges for newspaper publishers to deposit microfilm copies rather than cumbersome paper copy. See ANNUAL REPORT OF THE LIBRARY OF CONGRESS 101 (1984);
153. ANNUAL REPORT OF THE LIBRARY OF CONGRESS 86-87 (1983);
154. ANNUAL REPORT OF THE LIBRARY OF CONGRESS 76-77 (1982).
155. Congress has authorized the Copyright Office to record off-air transmissions of certain broadcasts. See 17 U.S.C. § 407(e)(1); American Television and Archives Act of 1976, § 113, 2 U.S.C. § 170 (1982).
156. See also 37 C.F.R. § 202.22 (1987);
157. HOUSE REPORT, supra note 59, at 152; 2 M. NIMMER, supra note 39, at § 7.17 [C] [4].
158. See DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 5 n.17.
159. See NATIONAL LIBRARIES, supra note 59, at 59.
160. See 17 U.S.C. § 408 (American Law); 1 & 2 Geo. 5, ch. 46, § 15 (British law); Law No. 341, 21 June 1943, J.O. 1 July 1943 (French law).
161. Switzerland has claimed a nearly 100% compliance with dépôt voloníaire. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 9.
162. See A. ESDAILE, supra note 12, at 121.
163. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 9. According to Marcel Godet, former head of the Swiss National Library, "L'esprit de Iiberté et d'égalité qui règne en Suisse n'est pas favorable à une obligation dont les origines remontent généralement à la censure politique et religieuse et qui frappe un peu arbitrairement une seule catégorie de commerçants. " Godet, supra note 63, at 298.
164. A. ESDAILE, supra note 12, at 122-23;
165. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 9; Godet, supra note 63, at 298-99. Some Swiss cantons granted privileges, or printer's licenses, in exchange for depositing works. A Swiss court ruled in 1905 that such arrangements were "incompatible with the right of freedom of trade laid down in the Federal Law." Bjerregård, supra note 22, at 331. Whatever the legal basis, the Swiss cantons of Vaud and Geneva continue to have local legal deposit programs. M. BEAUDIQUEZ, supra note 8, at 388. The Swiss constitutional case against legal deposit raises some peculiar comparative issues. Legal deposit in the United States has been ruled constitutionally permissible under the general Copyright Clause of the U.S. Constitution.
166. See Ladd v. Law & Technology Press, 762 F.2d 809 (9th Cir. 1985), cert. denied, 475 U.S. 1045 (1986). The Swiss Constitution gives the federal government similar authority to enact copyright legislation, but the government apparently has not interpreted the provision to allow obligatory legal deposit. See SWITZ. CONST. art. 64, in 15 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (A. Blaustein & G. Flanz eds. 1982).
167. See G. POMASSL, supra note 8, at 72. The two publishers' associations are the Schweizerischer Buchändler-und Verleger-Verband and the Société des Libraires et Editeurs de la Suisse Romande.
168. See INTERNATIONAL LITERARY MARKET PLACE 1988-89, at 385 (1988);
169. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 9.
170. A. ESDAILE, supra note 12, at 122;
171. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 9;
172. Godet, supra note 63, at 298-99.
173. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 9. The national bibliography of Switzerland is Schweizer Büchenerzeichnis (or Bibliographie Nationale Suisse), which is compiled every five years from the semimonthly Das Schweizer Bitch (or Le Livre Suisse).
174. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 9.
175. Id.
176. For a list of materials subject to the Swiss system, see G. POMASSL, supra note 8, at 72.
177. See also DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 9.
178. Dépôt volontaire is also confined to countries with a relatively small publishing industry. Annual Swiss book production in 1977 was 8,000 titles, although that number was up from fewer than 5,000 titles in 1960. See L. KROPF, PUBLISHING IN SWITZERLAND 46 (1973);
179. Anderson, supra note 34, at 653; Maier, The Swiss National Library, in 40 ENCYCLOPEDIA OF LIBRARY AND INFORMATION SCIENCE 394, 396 (A. Kent ed. 1986). UNESCO acknowledged the success of the Swiss system, but asserted that, "in general, legal deposit was the best means of ensuring the recording and conservation of national material." NATIONAL LIBRARIES, supra note 59, at 42.
180. See also A. ESDAILE, supra note 12, at 121-22;
181. Godet, supra note 63, at 298-99. The scope of materials received under the Swiss system is closely related to the scope of materials collected at the Swiss National Library, which collects only those works published in or about Switzerland or written by Swiss authors. See Maier, supra, at 394.
182. For example, American law indicates that deposits are for the Library of Congress, but the Library's use or retention of that material is not part of the law. See supra note 75 and accompanying text.
183. 17 U.S.C. § 407(b). The Copyright Act clearly gives the Library of Congress and the Copyright Office great flexibility in the retention of deposited materials. These agencies are expressly authorized to determine whether they might retain, exchange, transfer, or even destroy certain deposit items. Id. at §§ 704 (b)-(d).
184. See also HOUSE REPORT, supra note 59, at 171-72. With regard to deposited recordings of television and radio broadcasts, however, Congress has given the Library somewhat more definite direction, although still with considerable flexibility. See generally American Television and Radio Archives Act of 1976, 2 U.S.C. § 170 (1982).
185. See GUIDE TO NATIONAL BIBLIOGRAPHICAL INFORMATION CENTRES 175 (3d ed. 1970).
186. See Letheve, The Bibliotheque Nationale, 19 J. LIBR. HIST. 9, 11-12 (1984); infra note 123 and accompanying text.
187. See C. GOODRUM & H. DALRYMPLE, supra note 50, at 81.
188. For examples of works selectively not collected, see 37 C.F.R. § 202.19(c) (1987). The United States Copyright Act of 1909 began allowing the Library of Congress to select materials it would retain, thus expressly moving the library away from creating a comprehensive record of copyrighted materials.
189. See Copyright Act, ch. 320, §§ 59-60, 35 Stat. 1075, 1087 (1909);
190. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 22-23. See also supra note 114.
191. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 9.
192. C. GOODRUM & H. DALRYMPLE, supra note 50, at 121-22.
193. The British Library, in 36 ENCYCLOPEDIA OF LIBRARY AND INFORMATION SCIENCE 54, 69-71 (A. Kent ed. 1983).
194. A. ESDAILE, supra note 12, at 14;
195. The British Library, supra note 121, at 56-57.
196. The British Library collection is claimed to be "an approximation of that persistent aim of scholarship-to possess a universal bibliography of printed material." Richnell, Foreword to 1 THE BRITISH LIBRARY GENERAL CATALOGUE OF PRINTED BOOKS TO 1975, at v (1979). The Bodleian Library of Oxford University receives legal deposits, but it voluntarily does not lend any such works. According to the Bodleian, "this proviso is to protect the interests of the publishers," or at least to reduce the effect of legal deposit on potential sales of books, thereby discouraging publisher opposition to legal deposit.
197. See Bell, supra note 43, at 25.
198. See Maier, suprá note 112, at 394.
199. See NATIONAL LIBRARIES, supra note 59, at 59; Gorman, supra note 36, at 183-86.
200. See also J. LUNN, supra note 2, at § 3.2.5 ("It is suggested that the first objective of a legal deposit law should be stated to be the accumulation of a national collection in order to preserve, transmit and develop the national culture.").
201. J. LUNN, supra note 2, at § 13.7.
202. Like the United States, France has specialized national libraries apart from the Bibliothèque Nationale: Bibliothèque de 1'Arsenal, Bibliothèque du Conservatoire, and Biblothèque de 1'Opéra. J. FERGUSON, supra note 45, at 15.
203. The situation in Malta provides an example of uncoordinated services. The law requires deposit of books at the national library, but instability in the publishing industry, the shortage of professional librarians, and the lack of bibliographic information on many books make library service difficult or impossible. Moreover, many services are divided among other libraries. The university library compiles an authority list of Maltese names, but that library is not the legal deposit institution, so it lacks the information to make the list complete. See Sciberras, The Malta National Bibliography: Headings and Descriptive Cataloguing, Problems and Solutions, 14 INT'L CATALOGUING 11, 11-12 (1985).
204. UNESCO has emphasized the link between legal deposit and national bibliographies: "The national library is the obvious body to undertake the task of compilation, since it receives deposit copies of everything published in the country-an essential condition for compiling the current bibliography. . . ." NATIONAL LIBRARIES, supra note 59, at 50. "[T]he compilation of a national bibliography is, generally speaking, dependent on the strictures with which the legal deposit formalities are observed; it becomes far more difficult where legal deposit is non-existent or not effectively enforced." Id. at 57. "An effective legal deposit law provides the framework within which a national bibliography is able to acquire materials for treatment." Gorman, supra note 2, at § 3.3.1. Some writers urge a sweeping scope of materials for the national library, including company reports, theses and dissertations, and audiovisual works. Gorman, supra note 36, at 186. The diversity of bibliographies from throughout the world leaves "national bibliography" difficult to define satisfactorily. See generally RETROSPECTIVE NATIONAL BIBLIOGRAPHIES: AN INTERNATIONAL DIRECTORY 21-22 (M. Beaudiquez ed. 1986).
205. See A. ESDAILE, supra note 12, at 70;
206. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 6;
207. Seckel, French National Bibliography, in 37 ENCYCLOPEDIA OF LIBRARY AND INFORMATION SCIENCE 138, 148-50 (A. Kent 1984).
208. The British Library, supra note 121, at 81. Polden, The British Library, 12 INT'L LIBR. REV. 269, 279 (1980). The British Library also produces a union catalog of serials. Id. at 280.
209. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 5. The existence of the national bibliography, in turn, is used to build some collections. The National Library of Scotland has the authority to select books for receipt through legal deposit, and it makes selections after reviewing the British National Bibliography. Beattie, Response, in NATIONAL LIBRARIES, supra note 30, at 30.
210. DEPOSIT OF COPYRIGHTED WORKS, supra note 4, at 5.
211. Charles Jewett and others prepared bibliographies of books deposited or registered for copyright with the intention of creating a national bibliography. The U.S. Copyright Office began publishing the Catalog of Copyright Entries in 1897, and some early advocates argued that it could be considered a national bibliography. J. ROGERS, supra note 24, at 58. The Catalog of Copyright Entries is mandated by statute, but it only records copyright registrations and not merely deposits under § 407. See 17 U.S.C. § 707(a) (1982).
212. See G. POMASSL, supra note 8, at 79;
213. SUBCOMM. ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF SENATE COMM. ON THE JUDICIARY, 86TH CONG., 2D SESS., STUDIES PURSUANT TO S. RES. 240, STUDY 21, THE CATALOG OF COPYRIGHT ENTRIES 55 (Comm. Print 1960) (prepared by E. Dunne & J. Rogers)
214. See 1 W. KATZ, supra note 35, at 79-85.
215. Id.
216. Like the Library of Congress, the British Library also publishes union lists. Polden, supra note 131, at 280-82.
217. NATIONAL LIBRARIES, supra note 59, at 51, 74.
218. See also Gazzolo de Sangster, Legal Deposit and the Universal Availability of Publications (UAP): The Case of Peru, 2 UNESCO J. INFO. SCI., LIBR. & ARCHIVES ADMIN. 29, 30 (1980).
219. Anderson, supra note 34, at 650 (quoting NATIONAL COMMISSION ON LIBRARIES AND INFORMATION SCIENCE, TOWARD A NATIONAL PROGRAM FOR LIBRARY AND INFORMATION SERVICES 38 (1975)).
220. Id.
221. Id. at 650-51.
222. J. LUNN, supra note 2, 9. Registration forms currently used by the U.S. Copyright Office typically request the author's name, nationality, domicile, and dates of birth and death.
223. See, e.g.. UNITED STATES COPYRIGHT OFFICE, FORM TX (1985). Swiss depot volontaire requires publishers to submit biographical and bibliographic data with each new work. Godet, supra note 63, at 299-300.
224. Cataloging is the "process of describing an item in the collection, conducting subject analysis, and assigning a classification number." B. WYNAR, INTRODUCTION TO CATALOGING AND CLASSIFICATION 603 (A. Taylor 7th ed. 1985).
225. C. GOODRUM & H. DALRYMPLE, supra note 50, at 237-43;
226. Howard, The Library of Congress as the National Bibliographic Service, in THE NATURE AND FUTURE OF THE CATALOG 257 (M. Freedman & S. Malinconico eds. 1979);
227. Welsh, The Continuing Role of the Library of Congress in National Bibliographic Control, in id. at 72.
228. See generally Gislason, CIP: How It's Being Used, 43 CANADIAN LIBR. J. 413, 413 (1986).
229. Id. at 413;
230. Polden, supra note 131, at 279.
231. J. LUNN, supra note 2, at §§ 13.7 & 14.3.
232. New Style CIP from BL, 87 LIBR. A. REC. 95 (1985).
233. See also Gislason, supra note 145, at 416. At the Library of Congress, the Copyright Cataloging Division catalogs materials received as deposits, and its records have the same authority as other Library of Congress cataloging. Copyright Cataloging Division Celebrates 40 Years of Service, 46 LIBR. CONG. INFO. BULL. 67 (1987).
234. The British Library, supra note 121, at 81.
235. See J. LUNN, supra note 2, at 14.
236. See L. CHAN, LIBRARY OF CONGRESS SUBJECT HEADINGS 9-10 (2d ed. 1986);
237. L. CHAN, CATALOGING AND CLASSIFICATION 275 (1981).
238. See generally Humphreys, supra note 1, at 158-69;
239. Magnussen, supra note 30, at 11.
240. See, e.g., U.S. CONST, art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States").