Effective February 24, 2010, electronic works published in the United States only in online, and not physical, form will be exempt from mandatory deposit unless the Copyright Office makes a demand for deposit of such works. The interim regulation will identify categories of online works subject to demand, the first of which will be electronic serials. The regulation will also establish procedures for issuing and responding to a deposit demand; redefine the term “complete copy” as applied to deposit of online-only works; and establish criteria for determining the “best edition” of online works to be deposited. The Copyright Office will seek comments on the implementation of the regulation later in 2010. A more detailed discussion of the contents of and rationale behind the interim regulation can be found at 75 Fed. Reg. 3863.
It is important to remember that mandatory deposit is distinct from the deposit requirement associated with registration. Copies deposited with an application for registration serve to identify the work. The purpose of mandatory deposit, on the other hand, is to provide the Library of Congress with an archival copy of all works published in the United States. Although copyright registration is optional, all copyrightable works that are published in the United States (with limited exceptions) are subject to mandatory deposit.
Within three months of publication, two copies of the “best edition” of every copyrightable work must be deposited with the Copyright Office. No application for registration need accompany the mandatory deposit; however, a deposit made in connection with registration will satisfy the mandatory deposit requirement.
At any time after a work is published, the Register of Copyrights may demand the required deposit copy. If the required deposit is not made within three months of this demand, the person or entity obligated to make the deposit may be liable for a fine, plus the retail price of the copies. Copyright Office Circular 7d discusses the requirements of mandatory deposit in more detail.