COPYRIGHT ACT

« 17 USC Sec. 601 | Index | 17 USC Sec. 603 »

17 USC Sec. 602 - Infringing importation of copies or phonorecords

      (a) Importation into the United States, without the authority of

    the owner of copyright under this title, of copies or phonorecords

    of a work that have been acquired outside the United States is an

    infringement of the exclusive right to distribute copies or

    phonorecords under section 106, actionable under section 501. This

    subsection does not apply to -

        (1) importation of copies or phonorecords under the authority

      or for the use of the Government of the United States or of any

      State or political subdivision of a State, but not including

      copies or phonorecords for use in schools, or copies of any

      audiovisual work imported for purposes other than archival use;

        (2) importation, for the private use of the importer and not

      for distribution, by any person with respect to no more than one

      copy or phonorecord of any one work at any one time, or by any

      person arriving from outside the United States with respect to

      copies or phonorecords forming part of such person's personal

      baggage; or

        (3) importation by or for an organization operated for

      scholarly, educational, or religious purposes and not for private

      gain, with respect to no more than one copy of an audiovisual

      work solely for its archival purposes, and no more than five

      copies or phonorecords of any other work for its library lending

      or archival purposes, unless the importation of such copies or

      phonorecords is part of an activity consisting of systematic

      reproduction or distribution, engaged in by such organization in

      violation of the provisions of section 108(g)(2).

      (b) In a case where the making of the copies or phonorecords

    would have constituted an infringement of copyright if this title

    had been applicable, their importation is prohibited.  In a case

    where the copies or phonorecords were lawfully made, the United

    States Customs Service has no authority to prevent their

    importation unless the provisions of section 601 are applicable.

    In either case, the Secretary of the Treasury is authorized to

    prescribe, by regulation, a procedure under which any person

    claiming an interest in the copyright in a particular work may,

    upon payment of a specified fee, be entitled to notification by the

    Customs Service of the importation of articles that appear to be

    copies or phonorecords of the work.

-SOURCE-

    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2589.)

-MISC1-

                       HISTORICAL AND REVISION NOTES

                          HOUSE REPORT NO. 94-1476

      Scope of the Section. Section 602, which has nothing to do with

    the manufacturing requirements of section 601, deals with two

    separate situations: importation of ''piratical'' articles (that

    is, copies or phonorecords made without any authorization of the

    copyright owner), and unauthorized importation of copies or

    phonorecords that were lawfully made.  The general approach of

    section 602 is to make unauthorized importation an act of

    infringement in both cases, but to permit the United States Customs

    Service to prohibit importation only of ''piratical'' articles.

      Section 602(a) first states the general rule that unauthorized

    importation is an infringement merely if the copies or phonorecords

    ''have been acquired outside the United States'', but then

    enumerates three specific exceptions: (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

    imported for any purpose other than archival use; (2) importation

    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

    purposes'' 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 library lending or archival purposes.''

    The bill specifies that the third exception does not apply if the

    importation ''is part of an activity consisting of systematic

    reproduction or distribution, engaged in by such organization in

    violation of the provisions of section 108(g)(2).''

      If none of the three exemptions applies, any unauthorized

    importer of copies or phonorecords acquired abroad could be sued

    for damages and enjoined from making any use of them, even before

    any public distribution in this country has taken place.

      Importation of ''Piratical'' Copies. Section 602(b) retains the

    present statute's prohibition against importation 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 example 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 authorized 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 copies or phonorecords

    were lawfully made but their distribution 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

    constitute 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 authority 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.

-CROSS-

                              CROSS REFERENCES

      Importer of copies or phonorecords into the United States as

    infringer, see section 501 of this title.

-SECREF-

                   SECTION REFERRED TO IN OTHER SECTIONS

      This section is referred to in sections 501, 511, 603 of this

    title.

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