Deposit and Registration

AuthorRobert A. Gorman
ProfessionUniversity of Virginia School of Law
Pages64

Much less need be said about the other two elements of formalities that have been a fixture of our copyright law since the beginning of this century: deposit and registration. In the interest of maintaining a full collection in the Library of Congress, section 407 of the 1976 Copyright Actunaffected by the 1988 Berne Implementation Act-requires the copyright owner to deposit with the Copyright Office, within three months after publication of a work, two copies or phonorecords of the "best edition" (subject to some exemptions). If no deposit is made, the Register of Copyrights may make a written demand for such deposit, and continued failure of the copyright owner to comply may result in a fine. Failure to make the required deposit will not, however, invalidate the copyright.

There is, in any event, no requirement to deposit copies of unpublished works.

As distinguished from the requirement of deposit of copies of a published work, there is no reqt rement that the copyright owner register the copyright in the Copyright Office; registration is purely permissive.

Under section 408, a registration application may be filed with respect to either a published or unpublished work by "the owner of copyright or of.e any exclusive right in the work," and is to be accompanied by the application fee (presently $20) and the deposit of copies or phonorecords of the work; a deposit made in compliance with the statutory requirement of section 407 also satisfies the deposit provision of section 408 relating to e. registration.

Although registration is not a condition of a valid copyright, it has been a prerequisite for the commencement of an infringement action, both under the 1909 Act and the 1976 Act as originally 2nacted.107.

The 1976 Act contains other incentives for the copyright owner to apply for registration:

(1) if registration is made within five years after first publication of the work, the certificate issued by the Copyright Office shall, in an infringeV ment action, "constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate";108.

(2) in an infringement action, prompt registration is a condition to an award of attorney's fees and, even more significantly, of statutory damages, which can be as high as $20,000 (and as high as $100,000 for willful: infringement) even in the absence of specific proof of actual damages or profits;109 and.

(3) registration can cure certain omissions and errors in a...

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