Libraries play an integral role in the American identity. They also ensure that learning is accessible, advancing the Copyright Clause’s purpose—“to promote the progress of science and useful arts.” Since “creativity is almost always derivative,” access is crucial to progress. Libraries invaluably correct “access” market failures by preserving works in the public domain and loaning works to those who cannot or will not buy them. Without libraries, commercial publishers could wield oligarchic control over the public’s access to knowledge.
Most countries use library deposit systems to enrich their national libraries. These systems generally require commercial publishers to deposit copies of each work with their respective national libraries. But America’s library deposit system uniquely requires library deposit from copyright owners—not just publishers—under § 407 of the Copyright Act. The works deposited under § 407 bolster the Library of Congress: America’s “de facto national library.” The Library of Congress’s purpose is to “sustain and preserve a universal collection of knowledge and creativity for Congress and future generations.”
In Valancourt Books, LLC v. Garland, the D.C. Circuit held that § 407 violates the Takings Clause when applied to physical deposits. While correctly decided, Valancourt Books puts the United States at odds with the international status quo. This Note seeks to reconcile these points by analyzing various means for enriching the Library of Congress without offending the Constitution. It considers whether the Copyright Clause can support a library deposit mandate and, if so, how the Constitution’s affirmative limitations affect the mandate’s constitutionality.
