17 U.S.C. § 603 — Importation prohibitions: Enforcement and

Page 181 TITLE 17—COPYRIGHTS § 603 Section 602(a) first states the general rule that unau- thorized importation is an infringement merely if the copies or phonorecords ‘‘have been acquired outside the United States’’, but then enumerates three specific ex- ceptions: (1) importation under the authority or for the use of a governmental body, but not including material for use in schools or copies of an audiovisual work im- ported for any purpose other than archival use; (2) im- portation for the private use of the importer of no more than one copy or phonorecord of a work at a time, or of articles in the personal baggage of travelers from abroad; or (3) importation by nonprofit organizations ‘‘operated for scholarly, educational, or religious pur- poses’’ of ‘‘no more than one copy of an audiovisual work solely for archival purposes, and no more than five copies or phonorecords of any other work for its li- brary lending or archival purposes.’’ The bill specifies that the third exception does not apply if the importa- tion ‘‘is part of an activity consisting of systematic re- production or distribution, engaged in by such organi- zation in violation of the provisions of section 108(g)(2).’’ If none of the three exemptions applies, any unau- thorized importer of copies or phonorecords acquired abroad could be sued for damages and enjoined from making any use of them, even before any public dis- tribution in this country has taken place. Importation of ‘‘Piratical’’ Copies. Section 602(b) re- tains the present statute’s prohibition against importa- tion of ‘‘piratical’’ copies or phonorecords—those whose making ‘‘would have constituted an infringement of copyright if this title has been applicable.’’ Thus, the Customs Service could exclude copies or phonorecords that were unlawful in the country where they were made; it could also exclude copies or phonorecords which, although made lawfully under the domestic law of that country, would have been unlawful if the U.S. copyright law could have been applied. A typical exam- ple would be a work by an American author which is in the public domain in a foreign country because that country does not have copyright relations with the United States; the making and publication of an au- thorized edition would be lawful in that country, but the Customs Service could prevent the importation of any copies of that edition. Importation for Infringing Distribution. The second situation covered by section 602 is that where the cop- ies or phonorecords were lawfully made but their dis- tribution in the United States would infringe the U.S. copyright owner’s exclusive rights. As already said, the mere act of importation in this situation would con- stitute an act of infringement and could be enjoined. However, in cases of this sort it would be impracticable for the United States Customs Service to attempt to enforce the importation prohibition, and section 602(b) provides that, unless a violation of the manufacturing requirements is also involved, the Service has no au- thority to prevent importation, ‘‘where the copies or phonorecords were lawfully made.’’ The subsection would authorize the establishment of a procedure under which copyright owners could arrange for the Customs Service to notify them wherever articles appearing to infringe their works are imported. Editorial Notes AMENDMENTS 2010—Subsec. (b). Pub. L. 111–295 struck out ‘‘unless the provisions of section 601 are applicable’’ after ‘‘pre- vent their importation’’ in second sentence. 2008—Pub. L. 110–403, § 105(c)(1)(A), inserted ‘‘or expor- tation’’ after ‘‘importation’’ in section catchline. Subsec. (a). Pub. L. 110–403, § 105(b), inserted heading, designated introductory provisions as par. (1), struck out ‘‘This subsection does not apply to—’’ at end in par. (1), added par. (2) and par. (3) designation, heading, and introductory provisions, redesignated former pars. (1) to (3) as subpars. (A) to (C) of par. (3), respectively, and realigned margins, inserted ‘‘or exportation’’ after ‘‘im- portation’’ in par. (3)(A), and substituted ‘‘importation or exportation, for the private use of the importer or exporter’’ for ‘‘importation, for the private use of the importer’’ and inserted ‘‘or departing from the United States’’ after ‘‘United States’’ in par. (3)(B). Subsec. (b). Pub. L. 110–403, § 105(c)(1)(B), inserted heading and substituted ‘‘United States Customs and Border Protection has’’ for ‘‘the United States Customs Service has’’ and ‘‘United States Customs and Border Protection of’’ for ‘‘the Customs Service of’’. § 603. Importation prohibitions: Enforcement and disposition of excluded articles (a) The Secretary of the Treasury and the United States Postal Service shall separately or jointly make regulations for the enforcement of the provisions of this title prohibiting importa- tion. (b) These regulations may require, as a condi- tion for the exclusion of articles under section 602— (1) that the person seeking exclusion obtain a court order enjoining importation of the ar- ticles; or (2) that the person seeking exclusion furnish proof, of a specified nature and in accordance with prescribed procedures, that the copyright in which such person claims an interest is valid and that the importation would violate the prohibition in section 602; the person seek- ing exclusion may also be required to post a surety bond for any injury that may result if the detention or exclusion of the articles proves to be unjustified. (c) Articles imported in violation of the impor- tation prohibitions of this title are subject to seizure and forfeiture in the same manner as property imported in violation of the customs revenue laws. Forfeited articles shall be de- stroyed as directed by the Secretary of the Treasury or the court, as the case may be. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2590; Pub. L. 104–153, § 8, July 2, 1996, 110 Stat. 1388.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 The importation prohibitions of both sections 601 and 602 would be enforced under section 603, which is simi- lar to section 109 of the statute now in effect [section 109 of former title 17]. Subsection (a) would authorize the Secretary of the Treasury and the United States Postal Service to make regulations for this purpose, and subsection (c) provides for the disposition of ex- cluded articles. Subsection (b) of section 603 deals only with the pro- hibition against importation of ‘‘piratical’’ copies or phonorecords, and is aimed at solving problems that have arisen under the present statute. Since the United States Customs Service is often in no position to make determinations as to whether particular articles are ‘‘piratical,’’ section 603(b) would permit the Customs regulations to require the person seeking exclusion ei- ther to obtain a court order enjoining importation, or to furnish proof of his claim and to post bond. Editorial Notes AMENDMENTS 1996—Subsec. (c). Pub. L. 104–153 substituted a period at end for ‘‘; however, the articles may be returned to the country of export whenever it is shown to the satis- faction of the Secretary of the Treasury that the im- Page 182 TITLE 17—COPYRIGHTS § 603 porter had no reasonable grounds for believing that his or her acts constituted a violation of law.’’ CHAPTER 7—COPYRIGHT OFFICE Sec. 701. The Copyright Office: General responsibilities and organization. 702. Copyright Office regulations. 703. Effective date of actions in Copyright Office. 704. Retention and disposition of articles depos- ited in Copyright Office. 705. Copyright Office records: Preparation, main- tenance, public inspection, and searching. 706. Copies of Copyright Office records. 707. Copyright Office forms and publications. 708. Copyright Office fees. 709. Delay in delivery caused by disruption of postal or other services. 710. Emergency relief authority. HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Chapter 7 entitled ‘‘Copyright Office,’’ sets forth the administrative and housekeeping provisions of the bill. Administrative Procedure Act. Under an amendment to section 701 adopted by the Committee, the Copyright Office is made fully subject to the Administrative Pro- cedure Act [5 U.S.C. 551 et seq. and 701 et seq.] with one exception: under section 706(b), reproduction and dis- tribution of copyright deposit copies would be made under the Freedom of Information Act [5 U.S.C. 552] only to the extent permitted by the Copyright Office regulations. Retention and Disposition of Deposited Articles. A re- curring problem in the administration of the copyright law has been the need to reconcile the storage limita- tions of the Copyright Office with the continued value of deposits in identifying copyrighted works. Aside from its indisputable utility to future historians and scholars, a substantially complete collection of both published and unpublished deposits, other than those selected by the Library of Congress, would avoid the many difficulties encountered when copies needed for identification in connection with litigation or other purposes have been destroyed. The basic policy behind section 704 is that copyright deposits should be re- tained as long as possible, but that the Register of Copyrights and the Librarian of Congress should be em- powered to dispose of them under appropriate safe- guards when they decide that it has become necessary to do so. Under subsection (a) of section 704, any copy, phono- record, or identifying material deposited for registra- tion, whether registered or not, becomes ‘‘the property of the United States Government.’’ This means that the copyright owner or person who made the deposit cannot demand its return as a matter of right, even in rejection cases, although the provisions of section 407 and 408 are flexible enough to allow for special arrange- ments in exceptional cases. On the other hand, Govern- ment ownership of deposited articles under section 704(a) carries with it no privileges under the copyright itself; use of a deposited article in violation of the copyright owner’s exclusive rights would be infringe- ment. With respect to published works, section 704(b) makes all deposits available to the Library of Congress ‘‘for its collections, or for exchanges or transfer to any other library’’; where the work is unpublished, the Li- brary is authorized to select any deposit for its own collections or for transfer to the National Archives of the United States or to a Federal records center. Motion picture producers have expressed some con- cern lest the right to transfer copies of works, such as motion pictures, that have been published under rental, lease, or loan arrangements, might lead to abuse. How- ever, the Library of Congress has not knowingly trans- ferred works of this sort to other libraries in the past, and there is no reason to expect it to do so in the fu- ture. The Committee added a new subsection (c) to section 704, under which the Register is authorized to make microfilm or other record copies of copyright deposits before transferring or otherwise disposing of them. For deposits not selected by the Library, subsection (d) provides that they, or ‘‘identifying portions or re- productions of them,’’ are to be retained under Copy- right Office control ‘‘for the longest period considered practicable and desirable’’ by the Register and the Li- brarian. When and if they ultimately decide that reten- tion of certain deposited articles is no longer ‘‘prac- ticable and desirable,’’ the Register and Librarian have joint discretion to order their ‘‘destruction or other disposition.’’ Because of the unique value and irre- placeable nature of unpublished deposits, the sub- section prohibits their intentional destruction during their copyright term, unless a facsimile reproduction has been made. Subsection (e) of section 704 establishes a new proce- dure under which a copyright owner can request reten- tion of deposited material for the full term of copy- right. The Register of Copyrights is authorized to issue regulations prescribing the fees for this service and the ‘‘conditions under which such requests are to be made and granted.’’ Catalog of Copyright Entries. Section 707(a) of the bill retains the present statute’s basis requirement that the Register compile and publish catalogs of all copyright registrations at periodic intervals, but provides for ‘‘discretion to determine, on the basis of practicability and usefulness the form and frequency of publication of each particular part’’. This provision will in no way di- minish the utility or value of the present catalogs, and the flexibility of approach, coupled with use of the new mechanical and electronic devices now becoming avail- able, will avoid waste and result in a better product. Copyright Office Fees. The schedule of fees set out in section 708 reflects a general increase in the fees of the Copyright Office from those established by the Con- gress in 1965. The basic fees are $10 for registration, $6 for renewal registration, $10 for recordation of docu- ments and $10 per hour for searching. The section also contains new fee provisions needed because of new re- quirements or services established under the bill, and subsection (a)(11) authorizes the Register to fix addi- tional fees, on the ‘‘basis of the cost of providing the service,’’ ‘‘for any other special services requiring a substantial amount of time or expense.’’ Subsection (b) makes clear that, except for the possibility of waivers in ‘‘occasional or isolated cases involving relatively small amounts,’’ the Register is to charge fees for serv- ices rendered to other Government agencies. Postal Interruptions. Section 709 authorizes the Reg- ister of Copyrights to issue regulation to permit the ac- ceptance by the Copyright Office of documents which are delivered after the close of the prescribed period if the delay was caused by a general disruption or suspen- sion of postal or other transportation or communica- tions services. Reproductions for the Blind and Handicapped. Sec- tion 710 directs the Register of Copyrights to establish by regulation forms and procedures by which the copy- right owners of certain categories of works may volun- tarily grant to the Library of Congress a license to re- produce and distribute copies or phonorecords of the work solely for the use of the blind and physically handicapped. Editorial Notes AMENDMENTS 2020—Pub. L. 116–136, div. B, title IX, § 19011(b), Mar. 27, 2020, 134 Stat. 582, added item 710. 2000—Pub. L. 106–379, § 3(a)(1), Oct. 27, 2000, 114 Stat. 1445, struck out item 710 ‘‘Reproduction for use of the blind and physically handicapped: Voluntary licensing forms and procedures.’’