The Copyright Office has proposed changes to the mandatory deposit requirements for copyright registration for online-only works — a huge category which encompasses websites, blogs, online journals and publications, and online photo archives. While they vary for each category of copyrightable work, the mandatory deposit rules (37 CFR 202) typically require a copyright owner to deposit copies of the “best edition” of the work being registered with the Copyright Office. Due to the fact that online-only works are a rapidly growing category and ever-changing, the Copyright Office is proposing to drop the mandatory deposit requirements for registration of online-only works and substitute a right for the Copyright Office to demand a mandatory deposit of certain works as may be necessary or as it sees fit for the Library of Congress collections.
As with every proposed change in copyright regulations, there is a public comment period. The period for commenting on these proposed regulations closes October 11, 2009. Several industry associations have commented, including the American Society of Media Photographers (ASMP), the Association of American Publishers (AAP), the American Library Association (ALA), the Software and Information Industry Association (SIIA), and the Professional Photographers of America and the Newspaper Association of America. One concern identified goes to one of the most critical reasons for mandatory deposit: proof of the work, for purposes of litigation. In copyright infringement litigation, the mandatory deposit frequently comes into play as evidence of what exactly constituted the work at the time of registration. Not having a mandatory deposit will greatly increase the possibility that a plaintiff or defendant in an online copyright plagiarism dispute might change the contents of an online work to help its legal case. Another concern is the Copyright Office’s proposal to require a deposit of all code associated with an online-only publication (including scripts and metadata) raises both technological and digital rights issues. What constitutes a “complete copy” of the “best edition” of an online work?
The proposed federal regulations to change the copyright mandatory deposit procedure are here [PDF]. Existing public comments on the proposed mandatory deposit regulations are at the Copyright Office site. I consider this to have far-reaching implications for all websites, bloggers, and online publishers: it’s the most significant change in copyright law for these industries since the DMCA. The Copyright Office particularly needs feedback on the technological issues. If you are in the industry, as many of my clients are, you owe it to yourself to read the materials and educate yourself (and possibly the Copyright Office).