CBP Proposes Rule on Copyright Recordation and Enforcement to Prevent Importation of Piratical Articles
U.S. Customs and Border Protection (CBP) has issued a proposed rule to amend its regulations at 19 CFR Part 133 in order to better facilitate the copyright recordation process with CBP for certain protected copyrighted works, and to strengthen the enforcement procedures to protect those rights.
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CBP states that this proposed rule is necessary in light of the global increase in piracy and an increased risk to owners of protected copyrighted works as a result of technological advances available to those pirating copyrighted works.
Highlights of Proposed Changes to Copyright Recordation and Enforcement
CBP states that it is proposing the following changes to 19 CFR Part 133 in order to allow CBP to be more responsive to claims of piracy (partial list):
Recordation for audio-visual works that are pending registration with U.S. Copyright Office.CBP is proposing that a revised 19 CFR 133.31(a) would, among other things, allow sound recordings and motion pictures or similar audio-visual works to be recorded with CBP while pending registration with the U.S. Copyright Office.
Recordation for all non-U.S. works without registration with U.S. Copyright Office. CBP is proposing that a revised 19 CFR 133.31(a) would, among other things, allow recordation of all non-U.S. works (which are recognized under the Berne Convention for the Protection of Literary and Artistic Works) without requiring registration with the U.S. Copyright Office.
Recordation application process. Based on the above proposed changes, CBP is proposing to add new paragraphs (3) and (4) to 19 CFR 133.32(b) so that CBP may carry out protection of claims to copyright in certain U.S. works pending registration with the U.S. Copyright Office and claims to copyright in non-U.S. works which are entitled to protection under 17 USC 104.
In addition, CBP is proposing other changes to 19 CFR 133.32 and 133.33 to further clarify and simplify the recordation process and reduce the burden on those applying for recordation of claims to copyright.
Enforcement procedures for piratical articles. CBP is also proposing the following changes to 19 CFR Part 133 to achieve consistency with the above-proposed changes and to strengthen CBP's ability to enforce the prohibition against the importation of piratical articles (partial list):
Disclosure of shipping information to copyright owners upon infringement. CBP is proposing to amend 19 CFR 133.42(d) to provide that, in addition to the information already disclosed by CBP to the copyright owner when CBP seizes goods under that section, CBP would also disclose the following to the copyright owner or, for merchandise seized pursuant to 19 CFR 133.42(c)(3), to the producer of the copyright protection system:
Information from available shipping documents (such as manifests, air waybills, and bills of lading), including mode or method of shipping (such as airline carrier and flight number) and the intended final destination of the merchandise.
Procedures when CBP suspects certain articles may be piratical.CBP is proposing to remove the outdated and inefficient procedures of 19 CFR 133.43 and 133.44 and instead provide new regulations to allow CBP to detain merchandise when it has reasonable suspicion to believe that the merchandise is piratical and to seize merchandise that it determines to be piratical.
Detention of audio-visual works.CBP is proposing that a new 19 CFR 133.42(b)(2) would allow CBP to detain, for up to 30 days, sound recordings and motion pictures or similar audio-visual works prior to registration with the U.S. Copyright Office when CBP has reasonable suspicion to believe that they constitute piratical copies even though there is no underlying copyright registration or recordation on file with CBP.
(According to CBP, reasonable suspicion that certain articles are piratical would be based upon factors such as poor product quality, substandard packaging, irregular invoicing, methods of shipment, or other indicia of piracy.)
Waiver of bond requirement for suspect samples less than $50. CBP is proposing to allow port directors, at their discretion, to waive the bond requirement in 19 CFR 133.42(e) where the value of the sample is less than $50.00. (19 CFR 133.42(e) allows CBP to provide a sample of suspect merchandise to the copyright owner.)
Detention/seizure for DMCA violations. CBP is proposing to add paragraph (b)(3) and (c)(3) to 19 CFR 133.42 to provide for the detention and seizure of articles that constitute violations of the Digital Millenium Copyright Act (DMCA).
(The DMCA (enacted in 1998) among other things, prohibits the circumvention of technological measures used by copyright owners to protect their works.)
Recordings of infringing live musical performances would be subject to seizure. CBP is proposing to add, at 19 CFR 133.52(c)(2)(iii), recordings of live musical performances determined by CBP to be in violation of 18 USC 2319A to the types of sound recordings subject to seizure.
- see BP Note for comment due date CBP proposed rule (FR Pub 10/05/04) available at https://www.govinfo.gov/app/details/FR-2004-10-05/04-22334 According to CBP sources, the comment due date should have been listed as November 4, 2004. (CBP's Federal Register notice incorrectly stated November 4, 2005 was the comment due date.) These sources noted that due to this error, a notice will likely be published in the near future to extend the comment due date.CBP contact - Paul Pizzeck (202) 572-8710
BP Note