17 U.S.C. § 408 — Copyright registration in general

Page 160 TITLE 17—COPYRIGHTS § 408 Statutory Notes and Related Subsidiaries 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 PREDE- CESSOR DEMAND AND PENALTY PROVISIONS Pub. L. 94–553, title I, § 110, Oct. 19, 1976, 90 Stat. 2600, 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.’’ § 408. Copyright registration in general (a) REGISTRATION PERMISSIVE.—At any time during the subsistence of the first term of copy- right in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copy- right secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the ap- plication and fee specified by sections 409 and 708. Such registration is not a condition of copy- right protection. (b) DEPOSIT FOR COPYRIGHT REGISTRATION.— Except as provided by subsection (c), the mate- rial deposited for registration shall include— (1) in the case of an unpublished work, one complete copy or phonorecord; (2) in the case of a published work, two com- plete copies or phonorecords of the best edi- tion; (3) in the case of a work first published out- side the United States, one complete copy or phonorecord as so published; (4) in the case of a contribution to a collec- tive work, one complete copy or phonorecord of the best edition of the collective work. Copies or phonorecords deposited for the Library of Congress under section 407 may be used to satisfy the deposit provisions of this section, if they are accompanied by the prescribed applica- tion and fee, and by any additional identifying material that the Register may, by regulation, require. The Register shall also prescribe regula- tions establishing requirements under which copies or phonorecords acquired for the Library of Congress under subsection (e) of section 407, otherwise than by deposit, may be used to sat- isfy the deposit provisions of this section. (c) ADMINISTRATIVE CLASSIFICATION AND OP- TIONAL DEPOSIT.— (1) The Register of Copyrights is authorized to specify by regulation the administrative classes into which works are to be placed for purposes of deposit and registration, and the nature of the copies or phonorecords to be de- posited in the various classes specified. The regulations may require or permit, for par- ticular classes, the deposit of identifying ma- terial instead of copies or phonorecords, the deposit of only one copy or phonorecord where two would normally be required, or a single registration for a group of related works. This administrative classification of works has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title. (2) Without prejudice to the general author- ity provided under clause (1), the Register of Copyrights shall establish regulations specifi- cally permitting a single registration for a group of works by the same individual author, all first published as contributions to periodi- cals, including newspapers, within a twelve- month period, on the basis of a single deposit, application, and registration fee, under the following conditions: (A) if the deposit consists of one copy of the entire issue of the periodical, or of the entire section in the case of a newspaper, in which each contribution was first published; and (B) if the application identifies each work separately, including the periodical con- taining it and its date of first publication. (3) As an alternative to separate renewal registrations under subsection (a) of section 304, a single renewal registration may be made for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, upon the filing of a single application and fee, under all of the following conditions: (A) the renewal claimant or claimants, and the basis of claim or claims under section 304(a), is the same for each of the works; and (B) the works were all copyrighted upon their first publication, either through sepa- rate copyright notice and registration or by virtue of a general copyright notice in the periodical issue as a whole; and (C) the renewal application and fee are re- ceived not more than twenty-eight or less than twenty-seven years after the thirty- first day of December of the calendar year in which all of the works were first published; and (D) the renewal application identifies each work separately, including the periodical containing it and its date of first publica- tion. (d) CORRECTIONS AND AMPLIFICATIONS.—The Register may also establish, by regulation, for- mal procedures for the filing of an application for supplementary registration, to correct an error in a copyright registration or to amplify the information given in a registration. Such application shall be accompanied by the fee pro- vided by section 708, and shall clearly identify the registration to be corrected or amplified. The information contained in a supplementary registration augments but does not supersede that contained in the earlier registration. (e) PUBLISHED EDITION OF PREVIOUSLY REG- ISTERED WORK.—Registration for the first pub- lished edition of a work previously registered in unpublished form may be made even though the work as published is substantially the same as the unpublished version. Page 161 TITLE 17—COPYRIGHTS § 408 (f) PREREGISTRATION OF WORKS BEING PRE- PARED FOR COMMERCIAL DISTRIBUTION.— (1) RULEMAKING.—Not later than 180 days after the date of enactment of this subsection, the Register of Copyrights shall issue regula- tions to establish procedures for preregistration of a work that is being pre- pared for commercial distribution and has not been published. (2) CLASS OF WORKS.—The regulations estab- lished under paragraph (1) shall permit preregistration for any work that is in a class of works that the Register determines has had a history of infringement prior to authorized commercial distribution. (3) APPLICATION FOR REGISTRATION.—Not later than 3 months after the first publication of a work preregistered under this subsection, the applicant shall submit to the Copyright Office— (A) an application for registration of the work; (B) a deposit; and (C) the applicable fee. (4) EFFECT OF UNTIMELY APPLICATION.—An action under this chapter for infringement of a work preregistered under this subsection, in a case in which the infringement commenced no later than 2 months after the first publica- tion of the work, shall be dismissed if the items described in paragraph (3) are not sub- mitted to the Copyright Office in proper form within the earlier of— (A) 3 months after the first publication of the work; or (B) 1 month after the copyright owner has learned of the infringement. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2580; Pub. L. 100–568, § 9(a), Oct. 31, 1988, 102 Stat. 2859; Pub. L. 102–307, title I, § 102(e), June 26, 1992, 106 Stat. 266; Pub. L. 109–9, title I, § 104(a), Apr. 27, 2005, 119 Stat. 221.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Permissive Registration. Under section 408(a), reg- istration of a claim to copyright in any work whether published or unpublished, can be made voluntarily by ‘‘the owner of copyright or of any exclusive right in the work’’ at any time during the copyright term. The claim may be registered in the Copyright Office by de- positing the copies, phonorecords, or other material specified by subsection (b) and (c), together with an ap- plication and fee. Except where, under section 405(a), registration is made to preserve a copyright that would otherwise be invalidated because of omission of the no- tice, registration is not a condition of copyright protec- tion. Deposit for Purpose of Copyright Registration. In gen- eral, and subject to various exceptions, the material to be deposited for copyright registration consists of one complete copy or phonorecord of an unpublished work, and two complete copies or phonorecords of the best edition in the case of a published work. Section 408(b) provides special deposit requirements in the case of a work first published abroad (‘‘one complete copy or phonorecord as so published’’) and in the case of a con- tribution to a collective work (‘‘one complete copy or phonorecord of the best edition of the collective work’’). As a general rule the deposit of more than a tear sheet or similar fraction of a collective work is needed to identify the contribution properly and to show the form in which it was published. Where appro- priate as in the case of collective works such as multi- volume encyclopedias, multipart newspaper editions, and works that are rare or out of print, the regulations issued by the Register under section 408(c) can be ex- pected to make exceptions or special provisions. With respect to works published in the United States, a single deposit could be used to satisfy the deposit re- quirements of section 407 and the registration require- ments of section 408, if the application and fee for reg- istration are submitted at the same time and are ac- companied by ‘‘any additional identifying material’’ re- quired by regulations. To serve this dual purpose the deposit and registration would have to be made simul- taneously; if a deposit under section 407 had already been made, an additional deposit would be required under section 408. In addition, since deposit for the Li- brary of Congress and registration of a claim to copy- right serve essentially different functions, section 408(b) authorizes the Register of Copyrights to issue regulations under which deposit of additional material, needed for identification of the work in which copy- right is claimed, could be required in certain cases. Administrative Classification. It is important that the statutory provisions setting forth the subject matter of copyright be kept entirely separate from any classifica- tion of copyrightable works for practical administra- tive purposes. Section 408(c)(1) thus leaves it to the Register of Copyrights to specify ‘‘the administrative classes into which works are to be placed for purposes of deposit and registration,’’ and makes clear that this administrative classification ‘‘has no significance with respect to the subject matter of copyright or the exclu- sive rights provided by this title.’’ Optional Deposit. Consistent with the principle of ad- ministrative flexibility underlying all of the deposit and registration provisions, subsection (c) of section 408 also gives the Register latitude in adjusting the type of material deposited to the needs of the registration sys- tem. The Register is authorized to issue regulations specifying ‘‘the nature of the copies of phonorecords to be deposited in the various classes’’ and, for particular classes, to require or permit deposit of identifying ma- terial rather than copies or phonorecords, deposit of one copy or phonorecord rather than two, or, in the case of a group of related works, a single rather than a number of separate registrations. Under this provi- sion the Register could, where appropriate, permit de- posit of phonorecords rather than notated copies of mu- sical compositions, allow or require deposit of print- outs of computer programs under certain cir- cumstances, or permit deposit of one volume of an en- cyclopedia for purposes of registration of a single con- tribution. Where the copies or phonorecords are bulky, un- wieldy, easily broken, or otherwise impractical to file and retain as records identifying the work registered, the Register would be able to require or permit the sub- stitute deposit of material that would better serve the purpose of identification. Cases of this sort might in- clude, for example, billboard posters, toys and dolls, ce- ramics and glassware, costume jewelry, and a wide range of three-dimensional objects embodying copy- righted material. The Register’s authority would also extend to rare or extremely valuable copies which would be burdensome or impossible to deposit. Deposit of one copy or phonorecord rather than two would prob- ably be justifiable in the case of most motion pictures, and in any case where the Library of Congress has no need for the deposit and its only purpose is identifica- tion. The provision empowering the Register to allow a number of related works to be registered together as a group represents a needed and important liberalization of the law now in effect. At present the requirement for separate registrations where related works or parts of a work are published separately has created adminis- trative problems and has resulted in unnecessary bur- dens and expenses on authors and other copyright own- ers. In a number of cases the technical necessity for separate applications and fees has caused copyright Page 162 TITLE 17—COPYRIGHTS § 409 owners to forego copyright altogether. Examples of cases where these undesirable and unnecessary results could be avoided by allowing a single registration in- clude the various editions or issues of a daily news- paper, a work published in serial installments, a group of related jewelry designs, a group of photographs by one photographer, a series of greeting cards related to each other in some way, or a group of poems by a single author. Single Registration. Section 408(c)(2) directs the Reg- ister of Copyrights to establish regulations permitting under certain conditions a single registration for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, within a twelve-month period, on the basis of a single deposit, application, and registration fee. It is required that each of the works as first published have a separate copyright notice, and that the name of the owner of copyright in the work, (or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner) is the same in each notice. It is further required that the de- posit consist of one copy of the entire issue of the peri- odical, or of the entire section in the case of a news- paper, in which each contribution is first published. Fi- nally, the application shall identify each work sepa- rately, including the periodical containing it and its date of first publication. Section 408(c)(3) provides under certain conditions an alternative to the separate renewal registrations of subsection (a). If the specified conditions are met, a single renewal registration may be made for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, upon the filing of a single application and fee. It is re- quired that the renewal claimant or claimants, and the basis of claim or claims under section 304(a), is the same for each of the works; that the works were all copyrighted upon their first publication, either through separate copyright notice and registration or by virtue of a general copyright notice in the periodical issue as a whole; that the renewal application and fee are re- ceived not more than twenty-eight or less than twenty- seven years after December 31 of the calendar year in which all of the works were first published; and that the renewal application identifies each work sepa- rately, including the periodical containing it and its date of first publication. Corrections and Amplifications. Another unsatisfac- tory aspect of the present law is the lack of any provi- sion for correcting or amplifying the information given in a completed registration. Subsection (d) of section 408 would remedy this by authorizing the Register to establish ‘‘formal procedures for the filing of an appli- cation for supplementary registration,’’ in order to cor- rect an error or amplify the information in a copyright registration. The ‘‘error’’ to be corrected under sub- section (d) is an error by the applicant that the Copy- right Office could not have been expected to note dur- ing its examination of the claim; where the error in a registration is the result of the Copyright Office’s own mistake or oversight, the Office can make the correc- tion on its own initiative and without recourse to the ‘‘supplementary registration’’ procedure. Under subsection (d), a supplementary registration is subject to payment of a separate fee and would be maintained as an independent record, separate and apart from the record of the earlier registration it is intended to supplement. However, it would be required to identify clearly ‘‘the registration to be corrected or amplified’’ so that the two registrations could be tied together by appropriate means in the Copyright Office records. The original registration would not be ex- punged or cancelled; as stated in the subsection: ‘‘The information contained in a supplementary registration augments but does not supersede that contained in the earlier registration.’’ Published Edition of Previously Registered Work. The present statute requires that, where a work is reg- istered in unpublished form, it must be registered again when it is published, whether or not the published edi- tion contains any new copyrightable material. Under the bill there would be no need to make a second reg- istration for the published edition unless it contains sufficient added material to be considered a ‘‘derivative work’’ or ‘‘compilation’’ under section 103. On the other hand, there will be a number of cases where the copyright owner, although not required to do so, would like to have registration made for the pub- lished edition of the work, especially since the owner will still be obliged to deposit copies or phonorecords of it in the Copyright Office under section 407. From the point of view of the public there are advantages in al- lowing the owner to do so, since registration for the published edition will put on record the facts about the work in the form in which it is actually distributed to the public. Accordingly, section 408(e), which is in- tended to accomplish this result, makes an exception to the general rule against allowing more than one reg- istration for the same work. Editorial Notes REFERENCES IN TEXT The date of enactment of this subsection, referred to in subsec. (f)(1), is the date of enactment of Pub. L. 109–9, which was approved Apr. 27, 2005. AMENDMENTS 2005—Subsec. (f). Pub. L. 109–9 added subsec. (f). 1992—Subsec. (a). Pub. L. 102–307 substituted ‘‘At any time during the subsistence of the first term of copy- right in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copyright secured on or after that date,’’ for ‘‘At any time during the subsist- ence of copyright in any published or unpublished work,’’. 1988—Subsec. (a). Pub. L. 100–568, § 9(a)(1), substituted ‘‘Such’’ for ‘‘Subject to the provisions of section 405(a), such’’. Subsec. (c)(2). Pub. L. 100–568, § 9(a)(2), substituted ‘‘the following conditions:’’ for ‘‘all of the following conditions—’’, struck out subpar. (A) which read ‘‘if each of the works as first published bore a separate copyright notice, and the name of the owner of copy- right in the work, or an abbreviation by which the name can be recognized, or a generally known alter- native designation of the owner was the same in each notice; and’’, and redesignated subpars. (B) and (C) as (A) and (B), respectively. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–307 effective June 26, 1992, but applicable only to copyrights secured between Jan- uary 1, 1964, and December 31, 1977, and not affecting court proceedings pending on June 26, 1992, with copy- rights secured before January 1, 1964, governed by sec- tion 304(a) of this title as in effect on the day before June 26, 1992, except each reference to forty-seven years in such provisions deemed to be 67 years, see section 102(g) of Pub. L. 102–307, as amended, set out as a note under section 101 of this title. 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. § 409. Application for copyright registration The application for copyright registration shall be made on a form prescribed by the Reg- ister of Copyrights and shall include—