Should publishers send free copies
of their print-on-demand reprints of public domain
material to the Library of Congress?
Under the First Copyright Act in 1790,
copyright registration was required
to secure federal copyright protection,
including a requirement of deposit of two copies
to allow courts to compare an alleged
infringement work, to the actual
work registered for copyright.
This law was modeled on the Statute of the Ann
from 1709, which contained a provision requiring
a copy of a registered book for the Royal Library.
Subsequent copyright laws
have made registration optional.
Copyright law is now being used to force publishers
to send free copies of a reprint of public domain
material to the Library of Congress,
which has controlled all copyright activity,
including deposit, since 1870.
One such publisher is Valancourt Books.
It is a small, independent press,
located in Richmond, Virginia,
which specializes in rare, neglected,
and out of print fiction.
Rather than producing a run of thousands of books
and store the inventory to fulfill future orders,
Valancourt's books are printed one at a time
by a digital printing vendor.
Many of the works that Valancourt publishes
are older works in the public domain.
The editorial enhancements that Valancourt
adds to the works, such as scholarly introductions
and footnotes, are subject to copyright protection.
But Valancourt has chosen not to register this
new matter with the U.S. Copyright Office.
In 2018, Valancourt Books was served
with a notice by the U.S. Copyright Office,
which is located in the Library of Congress,
that they needed to remit two copies
of the best edition of 341 books,
essentially their entire catalog.
If they failed to do so, they would be liable
for damages of a fine up to $250 per work,
so $85,250, and the total
retail price of copies demanded.
Valancourt pointed out in their response,
that the works demanded were reprints
of public domain materials
and provide a catalog information to show
that these works were already at
the Library of Congress in their original editions.
But the Copyright Office persisted
and Valancourt brought suit,
arguing that this request was a violation
of a Takings Clause of the Constitution.
Printing almost 700 copies of books would
cost them $2,500, and there had been
no offer to compensate them of their property.
The Copyright Office argued that anyone
who publishes anything is the copyright owner,
who is required to deposit within three months,
regardless of whether they make any effort
to register for copyright.
In a print-on-demand context,
this means that the Library of Congress can demand
any print-on-demand book, regardless of whether
they sought to register the copyright.
The publishing market has fundamentally changed.
The idea of digital production in print-on-demand
was on no one's mind when mandatory deposit began,
and asking that copies of a print run be sent
to the Library of Congress
was a fairly minimal burden.
The application of mandatory deposit rules
to print-on-demand publishers,
risks chilling innovation and the availability
of works in an era where the marginal cost
of the best available copy
of a work costs $20 to $30.
Compared to a print run, where the marginal cost
of additional copies is fairly minimal.
Should the copyright deposit rule be amended
or does it still serve a purpose?
Should there be the same sort of exemption
for small print-on-demand publishers?
Should reprints fall under the same
regulations as original works?