Guest Post: Copyright Office Requirements for POD by Laura Montgomery

The Copyright Office Still Requires Two Copies of Your Book if You’ve Created a Print Version using a POD Service

The problem:  A friend asked me a couple weeks ago if I’d heard about the Copyright Office’s rule change, which maybe said we didn’t have to send in two physical copies of our books when we registered if our dead-tree versions were only available via print on demand.  I was super excited and hoped she was right for two reasons.  First, I didn’t want to have to send in two copies anymore to a place where—urban legend has it—they don’t actually have rooms for all the books they get.  Second, I was thinking it might speed things up if the Copyright Office could just rely on the existence of the electronic book to register my copyright.  That Office has never been fast, but now it’s glacial.

The conclusion.  Alas, after looking into it, my own view is that we still have to file two physical copies of our books with the Copyright Office.

The fine print.  TLDR:  this post isn’t legal advice.  Let me start by saying that although I am a lawyer in my day job, I am not an intellectual property lawyer.  If you need help with getting an FAA license for your rocket or want to know which launch participants have to sign waivers agreeing not to sue each other, I’m your gal.  Copyright? I feel competent enough to advise myself.

Nonetheless, I am going to share my logic in case you, too, find it persuasive.

The analysis.  Historically, if a writer only had an electronic version of his book, that is, if it was available “only on-line,” he didn’t have to send in a physical copy.  After all, he didn’t have one.  That made sense.  However, if he had a print-on-demand version like so many of us do,  he had to send in two copies of that book.  Many writers upload their book to a print on demand (POD) service that will print their books only when a reader orders a copy.  The service then prints just that one copy.  This is what I do and what my friend does, and we have dutifully been sending in our two paper copies when we register our copyrights.

Recently, the Copyright Office put out a confusing press release about its rule changes addressing, as best as I can tell, books that a reader prints out for herself.  I heard years ago that some Barnes and Noble stores were doing this, but I didn’t know it ever became a thing that people do. This practice looks to be the source of the confusion and what the Copyright Office intended when it referenced print on demand.

A little background.  When a government agency such as the Copyright Office wants to change its regulations, it faces a two step “rulemaking” process.  The agency must first propose its changes in a Notice of Proposed Rulemaking (NPRM) published in the federal government’s paper of record, the Federal Register, and seek public comment.  The NPRM contains a preamble explaining the agency’s authority for doing what it wants to do, why it wants to make changes, and the proposed regulations themselves.  After the agency digests the comments, it puts out what is called its “final rule,” which consists of another explanatory preamble and the regulations themselves.

For my conclusion, I’m relying on the Copyright Office’s preamble to its recent rule changes:

Second, the Authors Guild suggested clarifying edits to the language regarding the rule’s applicability to print-on-demand books. The 2020 NPRM provided that ‘‘[a] work shall be deemed to be available only online even if copies have been made available to individual consumers to print on demand, so long as the work is otherwise available only online.’’33 The Authors Guild suggested the phrase ‘‘individual consumers to print on demand’’ may be ambiguous and proposed revising the language to instead read: ‘‘made available to individual consumers by print on demand services.’’34 The Authors Guild did not identify the specific ambiguity that this suggested change is intended to clarify, but the Office does not agree that it reflects the rule’s intended scope. The reference to copies made available to consumers ‘‘by print on demand services’’ could be read to encompass physical copies printed by a service and distributed to individual purchasers. As discussed in the 2020 NPRM, ‘‘[t]hese books are outside the scope of this rule, and instead remain subject to the general mandatory deposit obligation under section 407.’’

Mandatory Deposit of Electronic-Only Books, 85 Fed. Reg. 71834, 71836 (Nov. 12, 2020) (footnotes omitted).

In short, the Copyright Office reacted with a frisson of horror to the clearly repellant suggestion that if a consumer gets a physical book sent to him from a POD service the Office would agree the book was “available only on-line” and thus exempt from the two-copy filing requirement.  The Authors Guild’s rather disingenuous request for “clarification” was actually a request that the Office expand the scope of the exemption the Office had originally proposed.  The Guild might have been better served by a more forthright approach.  It might have forced the Office to tackle head on whether it was really necessary to have two physical copies of a book.

Instead, the Guild gave the Office the chance to clarify that its exemption from filing only applies to consumers—whether individual readers or institutions such as libraries—doing their own printing, not when a writer uses a POD service such as the one my friend and I use.

Laura practices space law, writes science fiction, and is currently working toward a unified theory of terraforming for her latest series. To find out more, check out Laura’s Amazon Author’s page. Or check out her latest book:

Under the Earthline (Martha’s Sons Book 3)

He’s a pawn between a politician’s vengeance and his family’s safety. In a space settlement on the verge of turmoil, he’ll play to win… or die trying.

With only a slender hold on their alien world, human settlers from a marooned starship inhabit a single terraformed valley. As technology frays, as the second generation of settlers cannibalizes its past, and as the governor cancels elections again, tension grows between the city and the western farms.

One Dawe son dead, one in exile, and Thaddeus Dawe now slated to serve as a hostage for his younger brother’s crimes, Thaddeus has a task. He must locate the colony’s last terraseeder for the secret enclave another brother works to carve from the northern wilderness. But with the governor’s men harboring no love for Dawes, and First Landing’s bureaucracy and its preeminent practitioner having other plans, Thaddeus is not the only one whose life is at risk.

Pick up Under the Earthline now for a tale of adventure, loyalty, and love!

Featured Image by Pete Linforth from Pixabay