B-11825, SEPTEMBER 23, 1940, 20 COMP. GEN. 172

B-11825: Sep 23, 1940

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1940: I HAVE YOUR LETTER OF AUGUST 12. AS FOLLOWS: "YOUR DECISION IS RESPECTFULLY REQUESTED WITH REGARD TO THE FOLLOWING STATE OF FACTS AND LAW: (1) THE FACTS. THIS DEMAND WAS RECEIVED BY THE AMERICAN KENNEL CLUB ON OCTOBER 9. THERE WAS RECEIVED IN THE COPYRIGHT OFFICE FROM THE DEPARTMENT OF JUSTICE TREASURER'S CHECK NO. 167987 IN THE AMOUNT OF $3.78 PAYABLE TO THE ORDER OF THE REGISTER OF COPYRIGHTS. THIS CHECK WAS DEPOSITED BY THE REGISTER IN HIS SPECIAL DEPOSIT ACCOUNT WITH THE TREASURY OF THE UNITED STATES. REFUND CHECK OF THE COPYRIGHT OFFICE NO. 101117 WAS DRAWN IN THE SUM OF $3.78 TO THE ORDER OF THE LIBRARIAN OF CONGRESS ON JULY 25. IF THIS IS NOT ACCOMPLISHED WITHIN THE TERM SET FOR THE DEMAND TO RUN.

B-11825, SEPTEMBER 23, 1940, 20 COMP. GEN. 172

COPYRIGHT LAW VIOLATIONS - DISPOSITION OF AMOUNTS COLLECTED SECTION 13 OF THE COPYRIGHT ACT OF MARCH 4, 1909, PROVIDING THAT A COPYRIGHT PROPRIETOR WHO FAILS TO DEPOSIT TWO COPIES OF HIS WORK WITH THE COPYRIGHT OFFICE WITHIN A SPECIFIED TIME SHALL ,PAY TO THE LIBRARY OF CONGRESS TWICE THE AMOUNT OF THE RETAIL PRICE OF THE BEST EDITION OF THE WORK," DOES NOT AUTHORIZE THE USE OF AMOUNTS SO PAID FOR THE PURCHASE OF COPIES IN LIEU OF THE COPIES NOT DEPOSITED, AND SUCH AMOUNT SHOULD BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE LIBRARIAN, LIBRARY OF CONGRESS, SEPTEMBER 23, 1940:

I HAVE YOUR LETTER OF AUGUST 12, 1940, AS FOLLOWS:

"YOUR DECISION IS RESPECTFULLY REQUESTED WITH REGARD TO THE FOLLOWING STATE OF FACTS AND LAW:

(1) THE FACTS.---

ON OCTOBER 7, 1939, THE REGISTER OF COPYRIGHTS, ACTING UNDER AUTHORITY OF SECTION 13 OF THE COPYRIGHT ACT, DEMANDED OF THE AMERICAN KENNEL CLUB, 221 FOURTH AVENUE, NEW YORK CITY, A DEPOSIT OF TWO COMPLETE COPIES OF THE BEST EDITION OF "1THE COMPLETE DOG BOOK" (NEW AND REVISED EDITION). THIS DEMAND WAS RECEIVED BY THE AMERICAN KENNEL CLUB ON OCTOBER 9, 1939. UPON FAILURE OF THE CLUB TO COMPLY WITH THE DEMAND WITHIN THREE MONTHS FOLLOWING THE RECEIPT OF THE NOTICE AS PROVIDED BY STATUTE THE REGISTER OF COPYRIGHTS ON MAY 4, 1940, SUBMITTED THE MATTER TO THE ATTORNEY GENERAL WITH THE REQUEST THAT THE DEPARTMENT PROCEED AGAINST THE CLUB UNDER SECTION 12 AND APPLICABLE PROCEDURAL PROVISIONS OF THE COPYRIGHT ACT. JUNE 1, 1940, THE UNITED STATES ATTORNEY FORWARDED TO THE DEPARTMENT CHECK IN THE AMOUNT OF $103.78 COMPRISING FULL PAYMENT OF THE PENALTY OF $100 UNDER SECTION 13 OF THE COPYRIGHT ACT AND $3.78 REPRESENTING THE RETAIL PRICE OF TWO COPIES OF THE BEST EDITION OF THE WORK. ON JULY 24, 1940, THERE WAS RECEIVED IN THE COPYRIGHT OFFICE FROM THE DEPARTMENT OF JUSTICE TREASURER'S CHECK NO. 167987 IN THE AMOUNT OF $3.78 PAYABLE TO THE ORDER OF THE REGISTER OF COPYRIGHTS. THIS CHECK WAS DEPOSITED BY THE REGISTER IN HIS SPECIAL DEPOSIT ACCOUNT WITH THE TREASURY OF THE UNITED STATES, AND REFUND CHECK OF THE COPYRIGHT OFFICE NO. 101117 WAS DRAWN IN THE SUM OF $3.78 TO THE ORDER OF THE LIBRARIAN OF CONGRESS ON JULY 25, 1940, AND HAS BEEN DEPOSITED BY MR. RABBITT, THE DISBURSING OFFICER OF THE LIBRARY OF CONGRESS, IN HIS SPECIAL DEPOSIT ACCOUNT PENDING DETERMINATION OF THE QUESTION SUBMITTED TO YOU.

(2) THE LAW.---

SECTION 12 OF THE COPYRIGHT ACT IMPOSES UPON THE COPYRIGHT OWNER, WHO HAS SECURED COPYRIGHT BY THE PROCESS OF PUBLISHING A WORK WITH COPYRIGHT NOTICE, THE DUTY OF PROMPTLY DEPOSITING TWO COPIES OF THE WORK WITH CLAIM OF COPYRIGHT (APPLICATION FOR REGISTRATION). SECTION 13 AUTHORIZES THE REGISTER OF COPYRIGHTS TO DEMAND THE FULFILLMENT OF SECTION 12, AND IF THIS IS NOT ACCOMPLISHED WITHIN THE TERM SET FOR THE DEMAND TO RUN,"THE PROPRIETOR OF THE COPYRIGHT SHALL BE LIABLE TO A FINE OF ONE HUNDRED DOLLARS AND TO PAY TO THE LIBRARY OF CONGRESS TWICE THE AMOUNT OF THE RETAIL PRICE OF THE BEST EDITION OF THE WORK" ( U.S.C. 1934 ED. TITLE 17, SECTION 13).

BY PROVIDING IN SECTION 13 THAT THE COPYRIGHT OWNER SHALL " PAY TO THE LIBRARY OF CONGRESS" THIS SUM, CONGRESS APPEARS TO THE LIBRARIAN OF CONGRESS TO HAVE IN MIND THE BASIC PURPOSE OF THE DEPOSIT REQUIREMENT, TO WIT, THE ENRICHMENT OF THE LIBRARY OF CONGRESS. "THE PENALTY CLEARLY SPECIFIED IN SECTION 13 IS ADEQUATE FOR PUNISHMENT OF DELINQUENTS AND TO ENFORCE CONTRIBUTIONS OF DESIRABLE BOOKS TO THE LIBRARY" ( WASHINGTONIAN PUBLISHING CO., INC. V. PEARSON, ET AL., SUPREME COURT OF U.S., NO. 222, OCTOBER TERM, 1938).

UNDER THE ABOVE INTERPRETATION IT SEEMS TO THE LIBRARIAN THAT BY PROVIDING THAT UPON FAILURE TO COMPLY WITH THE DEMAND "THE PROPRIETOR SHALL BE LIABLE * * * TO PAY TO THE LIBRARY OF CONGRESS TWICE THE AMOUNT OF THE BEST EDITION OF THE WORK" THE PURPOSE OF THIS SPECIFIC PROVISION IS TO ENABLE THE LIBRARY OF CONGRESS TO PURCHASE COPIES OF THE WORK WHICH HAS FAILED OF DEPOSIT.

(3) THE QUESTION FOR DECISION.---

IT IS BECAUSE THE STATUTE DOES NOT IN EXPRESS TERMS AUTHORIZE THE LIBRARIAN TO APPLY THE AMOUNT OF SUCH PAYMENT TO THE PURCHASE OF SUCH COPIES, YOUR DECISION IS REQUESTED ON THE FOLLOWING POINT:

"MAY THE LIBRARY OF CONGRESS APPLY THE SUMS PAID TO IT UNDER SECTION 13 OF THE COPYRIGHT ACT TO THE PURCHASE OF COPIES IN LIEU OF COPIES DEPOSIT OF WHICH HAS NOT BEEN MADE IN ACCORDANCE WITH THE DEMAND MADE UNDER THE AUTHORITY OF THAT SECTION?

SECTIONS 12 AND 13 OF THE ACT APPROVED MARCH 4, 1909, ENTITLED "AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT," 35 STAT. 1078, PROVIDE AS FOLLOWS:

SEC. 12. THAT AFTER COPYRIGHT HAS BEEN SECURED BY PUBLICATION OF THE WORK WITH THE NOTICE OF COPYRIGHT AS PROVIDED IN SECTION NINE OF THIS ACT, THERE SHALL BE PROMPTLY DEPOSITED IN THE COPYRIGHT OFFICE OR IN THE MAIL ADDRESSED TO THE REGISTER OF COPYRIGHTS, WASHINGTON, DISTRICT OF COLUMBIA, TWO COMPLETE COPIES OF THE BEST EDITION THEREOF THEN PUBLISHED, WHICH COPIES, IF THE WORK BE A BOOK OR PERIODICAL, SHALL HAVE BEEN PRODUCED IN ACCORDANCE WITH THE MANUFACTURING PROVISIONS SPECIFIED IN SECTION FIFTEEN OF THIS ACT; OR IF SUCH WORK BE A CONTRIBUTION TO A PERIODICAL, FOR WHICH CONTRIBUTION SPECIAL REGISTRATION IS REQUESTED, ONE COPY OF THE ISSUE OR ISSUES CONTAINING SUCH CONTRIBUTION; OR IF THE WORK IS NOT REPRODUCED IN COPIES FOR SALE, THERE SHALL BE DEPOSITED THE COPY, PRINT, PHOTOGRAPH, OR OTHER IDENTIFYING REPRODUCTION PROVIDED BY SECTION ELEVEN OF THIS ACT, SUCH COPIES OR COPY, PRINT, PHOTOGRAPH, OR OTHER REPRODUCTION TO BE ACCOMPANIED IN EACH CASE BY A CLAIM OF RIGHT IN ANY WORK UNTIL THE PROVISIONS OF THIS ACT WITH RESPECT TO THE DEPOSIT OF COPIES AND REGISTRATION OF SUCH WORK SHALL HAVE BEEN COMPLIED WITH.

SEC. 13. THAT SHOULD THE COPIES CALLED FOR BY SECTION TWELVE OF THIS ACT NOT BE PROMPTLY DEPOSITED AS HEREIN PROVIDED, THE REGISTER OF COPYRIGHTS MAY AT ANY TIME AFTER THE PUBLICATION OF THE WORK, UPON ACTUAL NOTICE, REQUIRE THE PROPRIETOR OF THE COPYRIGHT TO DEPOSIT THEM, AND AFTER THE SAID DEMAND SHALL HAVE BEEN MADE, IN DEFAULT OF THE DEPOSIT OF COPIES OF THE WORK WITHIN THREE MONTHS FROM ANY PART OF THE UNITED STATES, EXCEPT AN OUTLYING TERRITORIAL POSSESSION OF THE UNITED STATES, OR WITHIN SIX MONTHS FROM ANY OUTLYING TERRITORIAL POSSESSION OF THE UNITED STATES, OR FROM ANY FOREIGN COUNTRY, THE PROPRIETOR OF THE COPYRIGHT SHALL BE LIABLE TO A FINE OF ONE HUNDRED DOLLARS AND TO PAY TO THE LIBRARY OF CONGRESS TWICE THE AMOUNT OF THE RETAIL PRICE OF THE BEST EDITION OF THE WORK, AND THE COPYRIGHT SHALL BECOME VOID.

SECTION 12, SUPRA, WAS AMENDED BY AN ACT APPROVED MARCH 28, 1914, ENTITLED "AN ACT TO AMEND SECTION TWELVE OF THE ACT ENTITLED "AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT," APPROVED MARCH FOURTH, NINETEEN HUNDRED AND NINE," 38 STAT. 311, BUT SUCH AMENDMENT IS NOT MATERIAL HERE.

WHILE SECTION 13 OF THE ACT OF MARCH 4, 1909, SUPRA, PROVIDES FOR THE PAYMENT TO THE LIBRARY OF CONGRESS OF MONEYS OF THE NATURE HERE INVOLVED, NO SPECIFIC PROVISION IS MADE THEREIN FOR THE FINAL DISPOSITION THEREOF. HENCE, THE DEPOSITION OF SUCH MONEYS IS FOR CONSIDERATION UNDER THE GENERAL STATUTES.

SECTIONS 3617 AND 3618 OF THE REVISED STATUTES PROVIDE AS FOLLOWS:

SEC. 3617. THE GROSS AMOUNT OF ALL MONEYS RECEIVED FROM WHATEVER SOURCE FOR THE USE OF THE UNITED STATES, EXCEPT AS OTHERWISE PROVIDED IN THE NEXT SECTION, SHALL BE PAID BY THE OFFICER, OR AGENT RECEIVING THE SAME INTO THE TREASURY, AT AS EARLY A DAY AS PRACTICABLE, WITHOUT ANY ABATEMENT OR DEDUCTION ON ACCOUNT OF SALARY, FEES, COSTS, CHARGES, EXPENSES, OR CLAIM OF ANY DESCRIPTION WHATEVER. BUT NOTHING HEREIN SHALL AFFECT ANY PROVISION RELATING TO THE REVENUES OF THE POST-OFFICE DEPARTMENT.

SEC. 3618. ALL PROCEEDS OF SALES OF OLD MATERIAL, CONDEMNED STORES, SUPPLIES, OR OTHER PUBLIC PROPERTY OF ANY KIND, EXCEPT THE PROCEEDS OF THE SALE OR LEASING OF MARINE HOSPITALS, OR OF THE SALES OF REVENUE CUTTERS, OR OF THE SALES OF COMMISSARY STORES TO THE OFFICERS AND ENLISTED MEN OF THE ARMY (OR OF MATERIALS, STORES, OR SUPPLIES SOLD TO OFFICERS AND SOLDIERS OF THE ARMY), OR OF THE SALE OF CONDEMNED NAVY CLOTHING, OR OF SALES OF MATERIALS, STORES, OR SUPPLIES TO ANY EXPLORING OR SURVEYING EXPEDITION AUTHORIZED BY LAW, SHALL BE DEPOSITED AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, ON ACCOUNT OF "PROCEEDS OF GOVERNMENT PROPERTY," AND SHALL NOT BE WITHDRAWN OR APPLIED, EXCEPT IN CONSEQUENCE OF A SUBSEQUENT APPROPRIATION MADE BY LAW.

IT THUS APPEARS THAT THE CONGRESS INTENDED THAT ALL RECEIPTS, THE DISPOSITION OF WHICH IS NOT SPECIFICALLY OTHERWISE PROVIDED FOR BY LAW, SHOULD BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, AND ACTION SHOULD BE ACCORDINGLY WITH REFERENCE TO THE ITEM OF $3.78 REFERRED TO IN YOUR LETTER, THUS REQUIRING THE QUESTION PRESENTED TO BE ANSWERED IN THE NEGATIVE.

THE CASE OF WASHINGTONIAN CO. V. PEARSON, 306 U.S. 30, CITED IN YOUR LETTER, RELATED TO THE QUESTION OF THE EFFECT OF THE DELAY IN DEPOSITING COPIES OF COPYRIGHTED WORK UPON THE RIGHT TO SUE UNDER THE COPYRIGHT ACT OF 1909 FOR INFRINGEMENT, AND WHAT WAS STATED THEREIN--- THE PORTION QUOTED IN YOUR LETTER--- WITH RESPECT TO THE PENALTY PROVISION WOULD APPEAR TO HAVE NO BEARING UPON THE QUESTION HERE PRESENTED.

IF IT BE ADMINISTRATIVELY DETERMINED THAT THE PURCHASE OF COPIES OF THE COMPLETE DOG BOOK IS DESIRABLE AND NECESSARY FOR THE PURPOSE OF INSURING A COMPLETE STOCK OF COPYRIGHTED ARTICLES IN THE LIBRARY OF CONGRESS, IT WOULD APPEAR THAT PAYMENT THEREFOR MAY BE MADE FROM THE APPROPRIATIONS AVAILABLE FOR THAT PURPOSE. SEE, FOR INSTANCE, THE " LEGISLATIVE APPROPRIATION ACT, 1941," APPROVED JUNE 18, 1940 ( PUBLIC 641, 76TH CONG.), PROVIDING AS FOLLOWS, UNDER " INCREASE OF THE LIBRARY OF CONGRESS:

GENERAL INCREASE OF LIBRARY: FOR PURCHASE OF BOOKS, MISCELLANEOUS PERIODICALS AND NEWSPAPERS, PHOTOCOPYING SUPPLIES AND PHOTOCOPYING LABOR AND ALL OTHER MATERIAL FOR THE INCREASE OF THE LIBRARY, INCLUDING PAYMENT IN ADVANCE FOR SUBSCRIPTION BOOKS AND SOCIETY PUBLICATIONS, AND FOR FREIGHT, COMMISSIONS, AND TRAVELING EXPENSES NOT TO EXCEED $5,000, INCLUDING EXPENSES OF ATTENDANCE AT MEETINGS WHEN INCURRED ON THE WRITTEN AUTHORITY AND DIRECTION OF THE LIBRARIAN OF BOOKS, MISCELLANEOUS PERIODICALS AND NEWSPAPERS, AND ALL OTHER MATERIAL FOR THE INCREASE OF THE LIBRARY, BY PURCHASE, GIFT, BEQUEST, OR EXCHANGE, $148,000, TO CONTINUE AVAILABLE DURING THE FISCAL YEAR 1942.