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Copyright Law
Copyright Act
« 17 USC Sec. 513 | Index | 17 USC Sec. 602 »
17 USC Sec. 601 - Manufacture, importation, and public distribution of certain copies
(a) Prior to July 1, 1986, and except as provided by subsection
(b), the importation into or public distribution in the United
States of copies of a work consisting preponderantly of nondramatic
literary material that is in the English language and is protected
under this title is prohibited unless the portions consisting of
such material have been manufactured in the United States or
Canada.
(b) The provisions of subsection (a) do not apply -
(1) where, on the date when importation is sought or public
distribution in the United States is made, the author of any
substantial part of such material is neither a national nor a
domiciliary of the United States or, if such author is a national
of the United States, he or she has been domiciled outside the
United States for a continuous period of at least one year
immediately preceding that date; in the case of a work made for
hire, the exemption provided by this clause does not apply unless
a substantial part of the work was prepared for an employer or
other person who is not a national or domiciliary of the United
States or a domestic corporation or enterprise;
(2) where the United States Customs Service is presented with
an import statement issued under the seal of the Copyright
Office, in which case a total of no more than two thousand copies
of any one such work shall be allowed entry; the import statement
shall be issued upon request to the copyright owner or to a
person designated by such owner at the time of registration for
the work under section 408 or at any time thereafter;
(3) where importation is sought under the authority or for the
use, other than in schools, of the Government of the United
States or of any State or political subdivision of a State;
(4) where importation, for use and not for sale, is sought -
(A) by any person with respect to no more than one copy of
any work at any one time;
(B) by any person arriving from outside the United States,
with respect to copies forming part of such person's personal
baggage; or
(C) by an organization operated for scholarly, educational,
or religious purposes and not for private gain, with respect to
copies intended to form a part of its library;
(5) where the copies are reproduced in raised characters for
the use of the blind; or
(6) where, in addition to copies imported under clauses (3) and
(4) of this subsection, no more than two thousand copies of any
one such work, which have not been manufactured in the United
States or Canada, are publicly distributed in the United States;
or
(7) where, on the date when importation is sought or public
distribution in the United States is made -
(A) the author of any substantial part of such material is an
individual and receives compensation for the transfer or
license of the right to distribute the work in the United
States; and
(B) the first publication of the work has previously taken
place outside the United States under a transfer or license
granted by such author to a transferee or licensee who was not
a national or domiciliary of the United States or a domestic
corporation or enterprise; and
(C) there has been no publication of an authorized edition of
the work of which the copies were manufactured in the United
States; and
(D) the copies were reproduced under a transfer or license
granted by such author or by the transferee or licensee of the
right of first publication as mentioned in subclause (B), and
the transferee or the licensee of the right of reproduction was
not a national or domiciliary of the United States or a
domestic corporation or enterprise.
(c) The requirement of this section that copies be manufactured
in the United States or Canada is satisfied if -
(1) in the case where the copies are printed directly from type
that has been set, or directly from plates made from such type,
the setting of the type and the making of the plates have been
performed in the United States or Canada; or
(2) in the case where the making of plates by a lithographic or
photoengraving process is a final or intermediate step preceding
the printing of the copies, the making of the plates has been
performed in the United States or Canada; and
(3) in any case, the printing or other final process of
producing multiple copies and any binding of the copies have been
performed in the United States or Canada.
(d) Importation or public distribution of copies in violation of
this section does not invalidate protection for a work under this
title. However, in any civil action or criminal proceeding for
infringement of the exclusive rights to reproduce and distribute
copies of the work, the infringer has a complete defense with
respect to all of the nondramatic literary material comprised in
the work and any other parts of the work in which the exclusive
rights to reproduce and distribute copies are owned by the same
person who owns such exclusive rights in the nondramatic literary
material, if the infringer proves -
(1) that copies of the work have been imported into or publicly
distributed in the United States in violation of this section by
or with the authority of the owner of such exclusive rights; and
(2) that the infringing copies were manufactured in the United
States or Canada in accordance with the provisions of subsection
(c); and
(3) that the infringement was commenced before the effective
date of registration for an authorized edition of the work, the
copies of which have been manufactured in the United States or
Canada in accordance with the provisions of subsection (c).
(e) In any action for infringement of the exclusive rights to
reproduce and distribute copies of a work containing material
required by this section to be manufactured in the United States or
Canada, the copyright owner shall set forth in the complaint the
names of the persons or organizations who performed the processes
specified by subsection (c) with respect to that material, and the
places where those processes were performed.
-SOURCE-
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2588;
Pub. L. 97-215, July 13, 1982, 96 Stat. 178; Pub. L. 105-80, Sec.
12(a)(15), (16), Nov. 13, 1997, 111 Stat. 1535.)
-MISC1-
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476
The Requirement in General. A chronic problem in efforts to
revise the copyright statute for the past 85 years has been the
need to reconcile the interests of the American printing industry
with those of authors and other copyright owners. The scope and
impact of the ''manufacturing clause,'' which came into the
copyright law as a compromise in 1891, have been gradually narrowed
by successive amendments.
Under the present statute, with many exceptions and
qualifications, a book or periodical in the English language must
be manufactured in the United States in order to receive full
copyright protection. Failure to comply with any of the
complicated requirements can result in complete loss of
protection. Today the main effects of the manufacturing
requirements are on works by American authors.
The first and most important question here is whether the
manufacturing requirement should be retained in the statute in any
form. Beginning in 1965, serious efforts at compromising the issue
were made by various interests aimed at substantially narrowing the
scope of the requirement, and these efforts produced the version of
section 601 adopted by the Senate when it passed S. 22.
The principal arguments for elimination of the manufacturing
requirement can be summarized as follows:
1. The manufacturing clause originated as a response to a
historical situation that no longer exists. Its requirements
have gradually been relaxed over the years, and the results of
the 1954 amendment, which partially eliminated it, have borne out
predictions of positive economic benefits for all concerned,
including printers, printing trades union members, and the
public.
2. The provision places unjustified burdens on the author, who
is treated as a hostage. It hurts the author most where it
benefits the manufacturer least: in cases where the author must
publish abroad or not at all. It unfairly discriminates between
American authors and other authors, and between authors of books
and authors of other works.
3. The manufacturing clause violates the basic principle that
an author's rights should not be dependent on the circumstances
of manufacture. Complete repeal would substantially reduce
friction with foreign authors and publishers, increase
opportunities for American authors to have their works published,
encourage international publishing ventures, and eliminate the
tangle of procedural requirements now burdening authors,
publishers, the Copyright Office, and the United States Customs
Service.
4. Studies prove that the economic fears of the printing
industry and unions are unfounded. The vast bulk of American
titles are completely manufactured in the United States, and U.S.
exports of printed matter are much greater than imports. The
American book manufacturing industry is healthy and growing, to
the extent that it cannot keep pace with its orders. There are
increasing advantages to domestic manufacture because of improved
technology, and because of the delays, inconveniences, and other
disadvantages of foreign manufacture. Even with repeal, foreign
manufacturing would be confined to small editions and scholarly
works, some of which could not be published otherwise.
The following were the principal arguments in favor of retaining
some kind of manufacturing restriction.
1. The historical reasons for the manufacturing clause were valid
originally and still are. It is unrealistic to speak of this as a
''free trade'' issue or of tariffs as offering any solution, since
book tariffs have been removed entirely under the Florence
Agreement. The manufacturing requirement remains a reasonable and
justifiable condition to the granting of a monopoly. There is no
problem of international comity, since only works by American
authors are affected by section 601. Foreign countries have many
kinds of import barriers, currency controls, and similar
restrictive devices comparable to a manufacturing requirement.
2. The differentials between U.S. and foreign wage rates in book
production are extremely broad and are not diminishing: Congress
should not create a condition whereby work can be done under the
most degraded working conditions in the world, be given free entry,
and thus exclude American manufacturers from the market. The
manufacturing clause has been responsible for a strong and enduring
industry. Repeal could destroy small businesses, bring chaos to
the industry, and catch manufacturers, whose labor costs and
break-even points are extremely high, in a cost-price squeeze at a
time when expenditures for new equipment have reduced profits to a
minimum.
3. The high ratio of exports to imports could change very quickly
without a manufacturing requirement. Repeal would add to the
balance-of-payments deficit since foreign publishers never
manufacture here. The U.S. publishing industry has large
investments abroad, and attacks on the manufacturing clause by
foreign publishers, show a keen anticipation for new business. The
book publishers arguments that repeal would have no real economic
impact are contradicted by their arguments that the manufacturing
requirement is stifling scholarship and crippling publishing; their
own figures show a 250 percent rise in English-language book
imports in 10 years.
After carefully weighing these arguments, the Committee concludes
that there is no justification on principle for a manufacturing
requirement in the copyright statute, and although there may have
been some economic justification for it at one time, that
justification no longer exists. While it is true that section 601
represents a substantial liberalization and that it would remove
many of the inequities of the present manufacturing requirement,
the real issue is whether retention of a provision of this sort in
a copyright law can continue to be justified. The Committee
believes it cannot.
The Committee recognizes that immediate repeal of the
manufacturing requirement might have damaging effects in some
segments of the U.S. printing industry. It has therefore amended
section 601 to retain the liberalized requirement through the end
of 1980, but to repeal it definitively as of January 1, 1981. It
also adopted an amendment further ameliorating the effect of this
temporary legislation on individual American authors.
In view of this decision, the detailed discussion of section 601
that follows will cease to be of significance after 1980.
Works Subject to the Manufacturing Requirement. The scope of the
manufacturing requirement, as set out in subsections (a) and (b) of
section 601, is considerably more limited than that of present
law. The requirements apply to ''a work consisting preponderantly
of nondramatic literary material that is in the English language
and is protected under this title,'' and would thus not extend to:
dramatic, musical, pictorial, or graphic works; foreign-language,
bilingual, or multilingual works; public domain material; or works
consisting preponderantly of material that is not subject to the
manufacturing requirement.
The term ''literary material'' does not connote any criterion of
literary merit or qualitative value; it includes catalogs,
directories and ''similar materials.''
A work containing ''nondramatic literary material that is in the
English language and is protected under this title,'' and also
containing dramatic, musical, pictorial, graphic, foreign-language,
public domain, or other material that is not subject to the
manufacturing requirement, or any combination of these, is not
considered to consist ''preponderantly'' of the copyright-protected
nondramatic English-language literary material unless such material
exceeds the exempted material in importance. Thus, where the
literary material in a work consists merely of a foreword or
preface, and captions, headings, or brief descriptions or
explanations of pictorial, graphic or other nonliterary material,
the manufacturing requirement does not apply to the work in whole
or in part. In such case, the non-literary material clearly
exceeds the literary material in importance, and the entire work is
free of the manufacturing requirement.
On the other hand, if the copyright-protected non-dramatic
English-language literary material in the work exceeds the other
material in importance, then the manufacturing requirement
applies. For example, a work containing pictorial, graphic, or
other non-literary material is subject to the manufacturing
requirement if the non-literary material merely illustrates a
textual narrative or exposition, regardless of the relative amount
of space occupied by each kind of material. In such a case, the
narrative or exposition comprising the literary material plainly
exceeds in importance the non-literary material in the work.
However, even though such a work is subject to the manufacturing
requirement, only the portions consisting of copyrighted
non-dramatic literary material in English are required to be
manufactured in the United States or Canada. The illustrations may
be manufactured elsewhere without affecting their copyright status.
Under section 601(b)(1) works by American nationals domiciled
abroad for at least a year would be exempted. The manufacturing
requirement would generally apply only to works by American authors
domiciled here, and then only if none of the co-authors of the work
are foreign.
In order to make clear the application of the foreign-author
exemption to ''works made for hire'' - of which the employer or
other person for whom the work was prepared is considered the
''author'' for copyright purposes - section 601(b)(1) provides that
the exemption does not apply unless a substantial part of the work
was prepared for an employer or other person who is not a national
or domiciliary of the United States, or a domestic corporation or
enterprise. The reference to ''a domestic corporation or
enterprise'' is intended to include a subsidiary formed by the
domestic corporation or enterprise primarily for the purpose of
obtaining the exemption.
The provision adopts a proposal put forward by various segments
of both the United States and the Canadian printing industries,
recommending an exemption for copies manufactured in Canada. Since
wage standards in Canada are substantially comparable to those in
the United States, the arguments for equal treatment under the
manufacturing clause are persuasive.
Limitations on Importation and Distribution of Copies
Manufactured Abroad. The basic purpose of the temporary
manufacturing requirements of section 601, like that of the present
manufacturing clause, is to induce the manufacture of an edition in
the United States if more than a certain limited number of copies
are to be distributed in this country. Subsection (a) therefore
provides in general that ''the importation into or public
distribution in the United States'' of copies not complying with
the manufacturing clause is prohibited. Subsection (b) then sets
out the exceptions to this prohibition, and clause (2) of that
subsection fixes the importation limit at 2,000 copies.
Additional exceptions to the copies affected by the manufacturing
requirements are set out in clauses (3) through (7) of subsection
(b). Clause (3) permits importation of copies for governmental use,
other than in schools, by the United States or by ''any State or
political subdivision of a State.'' Clause (4) allows importation
for personal use of ''no more than one copy of any work at any one
time,'' and also exempts copies in the baggage of persons arriving
from abroad and copies intended for the library collection of
nonprofit scholarly, educational, or religious organizations.
Braille copies are completely exempted under clause (5), and clause
(6) permits the public distribution in the United States of copies
allowed entry by the other clauses of that subsection. Clause (7)
is a new exception, covering cases in which an individual American
author has, through choice or necessity, arranged for publication
of his work by a foreign rather than a domestic publisher.
What Constitutes ''Manufacture in the United States'' or Canada.
A difficult problem in the manufacturing clause controversy
involves the restrictions to be imposed on foreign typesetting or
composition. Under what they regard as a loophole in the present
law, a number of publishers have for years been having their
manuscripts set in type abroad, importing ''reproduction proofs,''
and then printing their books from offset plates ''by lithographic
process * * * wholly performed in the United States.'' The language
of the statute on this point is ambiguous and, although the
publishers' practice has received some support from the Copyright
Office, there is a question as to whether or not it violates the
manufacturing requirements.
In general the book publishers have opposed any definition of
domestic manufacture that would close the ''repro proof'' loophole
or that would interfere with their use of new techniques of book
production, including use of imported computer tapes for
composition here. This problem was the focal point of a compromise
agreement between representatives of the book publishers and
authors on the one side and of typographical firms and printing
trades unions on the other, and the bill embodies this compromise
as a reasonable solution to the problem.
Under subsection (c) the manufacturing requirement is confined to
the following processes: (1) Typesetting and platemaking, ''where
the copies are printed directly from type that has been set, or
directly from plates made from such type''; (2) the making of
plates, ''where the making of plates by a lithographic or
photoengraving process is a final or intermediate step preceding
the printing of the copies''; and (3) in all cases, the ''printing
or other final process of producing multiple copies and any binding
of the copies.'' Under the subsection there would be nothing to
prevent the importation of reproduction proofs, however they were
prepared, as long as the plates from which the copies are printed
are made here and are not themselves imported. Similarly, the
importation of computer tapes from which plates can be prepared
here would be permitted. However, regardless of the process
involved, the actual duplication of multiple copies, together with
any binding, are required to be done in the United States or
Canada.
Effect of Noncompliance with Manufacturing Requirement.
Subsection (d) of section 601 makes clear that compliance with the
manufacturing requirements no longer constitutes a condition of
copyright with respect to reproduction and the distribution of
copies. The bill does away with the special ''ad interim'' time
limits and registration requirements of the present law and, even
if copies are imported or distributed in violation of the section,
there would be no effect on the copyright owner's right to make and
distribute phonorecords of the work, to make derivative works
including dramatizations and motion pictures, and to perform or
display the work publicly. Even the rights to reproduce and
distribute copies are not lost in cases of violation, although they
are limited as against certain infringers.
Subsection (d) provides a complete defense in any civil action or
criminal proceeding for infringement of the exclusive rights of
reproduction or distribution of copies where, under certain
circumstances, the defendant proves violation of the manufacturing
requirements. The defense is limited to infringement of the
''nondramatic literary material comprised in the work and any other
parts of the work in which the exclusive rights to reproduce and
distribute copies are owned by the same person who owns such
exclusive rights in the nondramatic literary material.'' This
means, for example, that the owner of copyright in photographs or
illustrations published in a book copyrighted by someone else who
would not be deprived of rights against an infringer who proves
that there had been a violation of section 601.
Section 601(d) places the full burden for proving violation on
the infringer. The infringer's defense must be based on proof
that: (1) copies in violation of section 601 have been imported or
publicly distributed in the United States ''by or with the
authority'' of the copyright owner; and (2) that the infringing
copies complied with the manufacturing requirements; and (3) that
the infringement began before an authorized edition complying with
the requirements had been registered. The third of these clauses
of subsection (d) means, in effect, that a copyright owner can
reinstate full exclusive rights by manufacturing an edition in the
United States and making registration for it.
Subsection (e) requires the plaintiff in any infringement action
involving publishing rights in material subject to the
manufacturing clause to identify the manufacturers of the copies in
his complaint. Correspondingly, section 409 would require the
manufacturers to be identified in applications for registration
covering published works subject to the requirements of section
601.
AMENDMENTS
1997 - Subsec. (a). Pub. L. 105-80, Sec. 12(a)(15), substituted
''nondramatic'' for ''nondramtic''.
Subsec. (b)(1). Pub. L. 105-80, Sec. 12(a)(16), substituted
''substantial'' for ''subsustantial'' before ''part of the work''.
1982 - Subsec. (a). Pub. L. 97-215 substituted ''1986'' for
''1982''.
-CROSS-
CROSS REFERENCES
Application for copyright registration, names of persons or
organizations who performed the processes specified in this
section, see section 409 of this title.
Fee for issuance of import statement, see section 708 of this
title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 409, 602 of this title.
« 17 USC Sec. 513 | Index | 17 USC Sec. 602 »
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