17 Usc 602

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TITLE 17—COPYRIGHTS

duce 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
2008—Subsec. (b)(2). Pub. L. 110–403 substituted
‘‘United States Customs and Border Protection’’ for
‘‘the United States Customs Service’’.
1997—Subsec. (a). Pub. L. 105–80, § 12(a)(15), substituted ‘‘nondramatic’’ for ‘‘nondramtic’’.
Subsec. (b)(1). Pub. L. 105–80, § 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.

§ 602. Infringing importation or exportation of
copies or phonorecords
(a) INFRINGING IMPORTATION OR EXPORTATION.—
(1) IMPORTATION.—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.
(2) IMPORTATION OR EXPORTATION OF INFRINGING ITEMS.—Importation into the United

§ 602

States or exportation from the United States,
without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright, or
which would have constituted an infringement
of copyright if this title had been applicable,
is an infringement of the exclusive right to
distribute copies or phonorecords under section 106, actionable under sections 501 and 506.
(3) EXCEPTIONS.—This subsection does not
apply to—
(A) importation or exportation 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;
(B) importation or exportation, for the private use of the importer or exporter 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 or departing from the United States
with respect to copies or phonorecords forming part of such person’s personal baggage;
or
(C) 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) IMPORT PROHIBITION.—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, United States
Customs and Border Protection 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 United States Customs and Border
Protection of the importation of articles that
appear to be copies or phonorecords of the work.
(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat.
2589; Pub. L. 110–403, title I, § 105(b), (c)(1), Oct.
13, 2008, 122 Stat. 4259, 4260.)
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

TITLE 17—COPYRIGHTS

§ 603

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.
AMENDMENTS
2008—Pub. L. 110–403, § 105(c)(1)(A), inserted ‘‘or exportation’’ after ‘‘importation’’ in section catchline.
Subsec. (a). Pub. L. 110–403, § 105(b), inserted heading,
designated introductory provisions as par. (1), struck
out ‘‘This subsection does not apply to—’’ at end in par.
(1), added par. (2) and par. (3) designation, heading, and
introductory provisions, redesignated former pars. (1)
to (3) as subpars. (A) to (C) of par. (3), respectively, and

Page 150

realigned margins, inserted ‘‘or exportation’’ after ‘‘importation’’ in par. (3)(A), and substituted ‘‘importation
or exportation, for the private use of the importer or
exporter’’ for ‘‘importation, for the private use of the
importer’’ and inserted ‘‘or departing from the United
States’’ after ‘‘United States’’ in par. (3)(B).
Subsec. (b). Pub. L. 110–403, § 105(c)(1)(B), inserted
heading and substituted ‘‘United States Customs and
Border Protection has’’ for ‘‘the United States Customs
Service has’’ and ‘‘United States Customs and Border
Protection of’’ for ‘‘the Customs Service of’’.

§ 603. Importation prohibitions: Enforcement and
disposition of excluded articles
(a) The Secretary of the Treasury and the
United States Postal Service shall separately or
jointly make regulations for the enforcement of
the provisions of this title prohibiting importation.
(b) These regulations may require, as a condition for the exclusion of articles under section
602—
(1) that the person seeking exclusion obtain
a court order enjoining importation of the articles; or
(2) that the person seeking exclusion furnish
proof, of a specified nature and in accordance
with prescribed procedures, that the copyright
in which such person claims an interest is
valid and that the importation would violate
the prohibition in section 602; the person seeking exclusion may also be required to post a
surety bond for any injury that may result if
the detention or exclusion of the articles
proves to be unjustified.
(c) Articles imported in violation of the importation prohibitions of this title are subject to
seizure and forfeiture in the same manner as
property imported in violation of the customs
revenue laws. Forfeited articles shall be destroyed as directed by the Secretary of the
Treasury or the court, as the case may be.
(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat.
2590; Pub. L. 104–153, § 8, July 2, 1996, 110 Stat.
1388.)
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94–1476

The importation prohibitions of both sections 601 and
602 would be enforced under section 603, which is similar to section 109 of the statute now in effect [section
109 of former title 17]. Subsection (a) would authorize
the Secretary of the Treasury and the United States
Postal Service to make regulations for this purpose,
and subsection (c) provides for the disposition of excluded articles.
Subsection (b) of section 603 deals only with the prohibition against importation of ‘‘piratical’’ copies or
phonorecords, and is aimed at solving problems that
have arisen under the present statute. Since the United
States Customs Service is often in no position to make
determinations as to whether particular articles are
‘‘piratical,’’ section 603(b) would permit the Customs
regulations to require the person seeking exclusion either to obtain a court order enjoining importation, or
to furnish proof of his claim and to post bond.
REFERENCES IN TEXT
The customs revenue laws, referred to in subsec. (c),
are classified generally to Title 19, Customs Duties.
AMENDMENTS
1996—Subsec. (c). Pub. L. 104–153 substituted a period
at end for ‘‘; however, the articles may be returned to