Copyrights - 17 USC Section 602

01/19/04

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.

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.

Last modified: April 19, 2006