Over the past few days, a very interesting discussion has taken place on the listserv for Intellectual Property professors, and that is whether a work must be complete before it can be infringed. Examples of musical works such as jazz compositions were discussed along with early versions of literary works. This made me think about libraries and archival collections that hold literary manuscripts. Certainly, in the United States, before a copyright owner can sue an infringer, the work must be registered with the Copyright Office.
Suppose that an author donates a manuscript to a library and then continues to work on the novel, produces several more versions and then publishes a final unregistered version on a website. If the author registered the copyright in the version of the work contained in the donated manuscript, and someone infringes the later novel, does the earlier registration provide statutory basis for suit against the infringer? Murray Hills v. ABC Communications, 264 F.3d 622 (6th Cir. 2001), held that registration of an earlier version of a work will not support a claim of infringement against a later derivative version of the same work.
However, it likely depends on whether the infringer copied material only from the later version that does not appear in the donated manuscript version. Should authors register successive versions of a work? Perhaps, but this would be rare in the world of literary works.
This has some importance for academic libraries and other archival collections that receive donated copies of works and seek to reproduce them for reserve collections rather than use the later published version for which the library would have to seek permission at some point. (Now, lets assume that the published version is registered for copyright but not the earlier donated manuscript version.) Librarians have often asked whether using earlier versions for reproduction avoided this question assuming that later versions are separate works. Typically, later versions are not separate works. If the material in the donated earlier version later does not appear in the published version, then perhaps they are two separate works, but this is not the normal way in which authors work.
Thus, libraries really cannot rely on donated earlier manuscript versions of published works as freeing them from copyright concerns. The only exception is if the earlier version is so different from the published version that it truly is a separate work.
