§ 602. — Infringing importation of copies or phonorecords.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC602]
TITLE 17--COPYRIGHTS
CHAPTER 6--MANUFACTURING REQUIREMENTS AND IMPORTATION
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.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2589.)
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.
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 501, 511, 603 of this title.
