§ 601. — Manufacture, importation, and public distribution of certain copies.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC601]
TITLE 17--COPYRIGHTS
CHAPTER 6--MANUFACTURING REQUIREMENTS AND IMPORTATION
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.
(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.)
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''.
Transfer of Functions
For transfer of functions, personnel, assets, and liabilities of the
United States Customs Service of the Department of the Treasury,
including functions of the Secretary of the Treasury relating thereto,
to the Secretary of Homeland Security, and for treatment of related
references, see sections 203(1), 551(d), 552(d), and 557 of Title 6,
Domestic Security, and the Department of Homeland Security
Reorganization Plan of November 25, 2002, as modified, set out as a note
under section 542 of Title 6.
Section Referred to in Other Sections
This section is referred to in sections 409, 602 of this title.
