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

27 comments

  1. They used to ask for just one. Then the last time kept telling me I hadn’t sent a book though I had, so I ended up sending a second.

    Bottom line: If you have a dead tree copy available at all, yes, they want 2.

      1. So are we. You are not alone in wondering what on God’s green earth they’re doing in the copyright office.

      2. What do you do with the certificates? The book can still be published, right? So what happens if you don’t file for a copyright?

        1. Now you’re taxing my memory. So, once you create a work copyright protects it, even before you register it. The Copyright Office’s regulations require you to register it. The good thing about registration is that if you need to sue someone, you have proof the book is yours and you do better on getting damages (and I’d have to look up the details). Also, I think you have to register before you can sue. I’m sure there’s more, but that’s what I remember.

  2. I really hate the author’s guild. I have no idea what purpose they server, other than it has NOTHING to do with actual Authors. They were totally unaware of my lawsuit last year (unlike every publisher in the US & Canada, as well as Amazon) and were ‘shocked’ when I asked where they had been during the whole affair.

    So I’m not at all surprised to hear that they’re just going around screwing things up.

    Me? I file electronically and I don’t send in physical copies, even though my books are available online and via POD and my lawyers (I have 3 IP lawyers) haven’t complained about it yet. Though I haven’t asked them specifically about it yet. The problem with copyright lawsuits is that they’re expensive. It’s twenty to thirty thousand dollars just to walk into the courtroom and you’re probably going to spend a minimum of forty grand on the case. Few people can afford that.

    Sometimes I think that what we really need are two guys like ‘Muscular Vito’ and ‘Not Known for Being Nice Nick’ to handle these problems for us 🙂

    (For the humor impaired – that’s a joke)

  3. i want to make my first book available in paperback when I release Book 2 (which will be KU and ebook only at first). So, does this mean that when I create the paperback (I’m using Amazon) I need to order copies for myself and send two of them to the copyright office? Or will Amazon/KDP do it as part of the set up?

    1. Yes, you have to do it yourself. IIRC, the Copyright Office wants the best available copy, and if it’s available, the print copy is what the Office considers the best. I don’t use the proof copies Amazon sends to authors because they have that ugly black band on them and are therefore not “the best.” It’s possible I’m being too conservative.

      One thought to consider, however, to make life a wee bit easier if you already have Book 1 published as an ebook: If you already have Book 1 available electronically, you can register it now, more cheaply, and submit an electronic version. If you wait to register until you have the POD for Book 1, you have to submit two physical copies because those physical copies are then the best available. Double check me on this by going to the Copyright Office and starting the registration process for Book 1, but it was a doable thing back in the day.

      I now put my POD up on Amazon first to get reviews on it, so I can no longer employ the electronic copy strategem.

      1. The best copy? So it’s like when I go to get my CCW permit and I have to qualify by putting some holes in a piece of paper, the permit is issued for the type (semi-auto and/or revolver) and caliber I used to make the holes and below. Only. So if you get a hardcover edition, then you have to send in a hard cover edition… that’s the .45 1911… and everything below that is included.

        And now I’m wondering if super special limited edition leather bound copies of Grimnoir had to be sent to the copyright office. Ha!

        Okay, so my brain is weird today.

  4. I am not a lawyer; this is not legal advice. For real legal advice about copyright, consult an IP lawyer.

    In general, a work is copyrighted upon creation. However, in order to sue for copyright infringement, the work generally must have its copyright registered with the copyright office. And a recent case at the Supreme Court clarified that the registration must be complete (you have a copyright registration certificate), not just have an application filed, before you can sue.

    There’s an explanation of that case (which was a 2019 case) at https://www.scotusblog.com/2019/03/opinion-analysis-a-copyright-owner-cant-sue-for-infringement-before-the-register-has-processed-its-copyright-registration-application/ and the basic law is in 17 U.S. Code § 411.

    So, even though the work is copyrighted, if you want to sue for infringement, you need to register the work.

    At least, that’s my non-lawyer understanding.

  5. Isn’t but charming how the unelected lawmakers can make law and we cannot turf them out?

    Sorry writers. I know I am going off on a tangent. You want to know how to deal with the corrupt, inept oligarchy foisted upon us, and I am still torqued that we are no longer able (and it was always a long shot) to elect anyone to remove it.

    1. NAL, but I’d say, nothing. You live in the Philippines, right? You’d register your books with your own copyright office connected to the National Library, following their rules.

  6. I read this this morning with alarm. When I made the print version of my debut novel available via POD in June 2019, registration with the U.S. Copyright Office was optional. This post seems to be saying— I may have read the OP wrong— that the rules have changed and it’s now mandatory.

    I’ll comply if I have to, but thought I’d better check the Copyright Office website to find out for sure.

    Here’s what came up on page 4 of Circular 1, “Copyright Basics,” (https:// www. copyright. gov/circs/circ01.pdf— mind the gaps) which outlines the current rules:

    “Copyright exists automatically in an original work of authorship once it is fixed in a tangiblemedium, but a copyright owner can take steps to enhance the protections of copyright, the most important of which is registering the work. Although registering a work is not mandatory, for U.S. works, registration (or refusal) is necessary to enforce the exclusive rights of copyright through litigation.
    “Applying a copyright notice to a work has not been required since March 1, 1989, but may still provide practical and legal benefits. Notice typically consists of the copyright symbol or the word “Copyright,” the name of the copyright owner, and the year of first publication. Placing a copyright notice on a work is not a substitute for registration.”

    So if U.S. authors choose to register their works, the red tape and the two copies is simple the price of gaining the benefit of it. But according to the Copyright Office, it is a choice.

    1. The OP was just about a much smaller issue–if you are registering and you have a POD you have to file physical copies of it when registering. Didn’t mean to panic anyone.

      1. {Insert smilie-face emoji}
        This has started a lot of hares, hasn’t it?

        As to the specific point of filing physical copies when registering, I’m a little astonished. Was the Authors Guild trying to argue otherwise for POD?

        That’s too subtle for me. Or, as you say, repellant. Given that most Indie authors use print on demand, it’s more than a little insulting to think the CO or the LOC wouldn’t want physical copies of our work, for the copyright application or for Mandatory Deposit.

  7. I’ve just gone a little deeper down this rabbit hole, and I see the OP is talking about the little-known Mandatory Deposit requirement here in the U.S. (Circular 7D, “Mandatory Deposit of Copies or Phonorecords for the Library of Congress,” https:// www. copyright. gov/circs/circ07d.pdf— note gaps), which is separate from the matter of applying for copyright registration. Whoops, 7D does say we’re supposed to submit two best copies, within three months of publication, for the august shelves of the Library of Congress. If we elect to apply for copyright registration, we can send two copies with that and so fulfill the MD requirement.

    Do most creators know about Mandatory Deposit? Nope. Which, I now see, was the point of this blog post. Does this mean we all need to hurry up and order two copies of all our published works and send them off to Washington, D.C. ASAP? I’ll leave that up to each author and his/her IP lawyer, if any.

    I might, just for the amusement of knowing my badly-selling novel sits in the Library of Congress. Or, considering how far past the deadline I am, I might just wait till I receive a Notice for Mandatory Deposit, which sets the three-month clock again.

    Mandatory Deposit for the Library of Congress and copyright registration with the Copyright Office: two separate but sometimes overlapping things. Hooray for the gubmint. At least it keeps the lawyers off the streets.

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