[Federal Register Volume 69, Number 192 (Tuesday, October 5, 2004)]
[Proposed Rules]
[Pages 59562-59569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22334]


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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

19 CFR 133

RIN 1505-AB51


Recordation of Copyrights and Enforcement Procedures To Prevent 
the Importation of Piratical Articles

AGENCY: Bureau of Customs and Border Protection, Department of Homeland 
Security.

ACTION: Proposed rule.

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SUMMARY: As a result of technological advances available to those 
pirating copyrighted works, there has been a global increase in the 
importation of piratical works. Because of this increased risk to 
owners of protected copyrighted works and because most owners of 
copyrights in non-U.S. works do not register their copyrights as a 
matter of course, the Bureau of Customs and Border Protection (CBP) is 
proposing regulations that allow CBP to be more responsive to claims of 
piracy.
    The CBP Regulations currently require that in order to be eligible 
for border protection all claims to copyright, foreign and domestic, be 
registered with the U.S. Copyright Office. This document proposes to 
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. This document also proposes to amend the CBP 
Regulations to enhance the protection of all non-U.S. works by allowing 
recordation without requiring registration with the U.S. Copyright 
Office. Lastly, the proposed regulations set forth changes to CBP's 
enforcement procedures, including, among other things, enhanced 
disclosure provisions, protection for live musical performances and 
provisions to enforce the Digital Millennium Copyright Act.

DATES: Written comments must be submitted on or before November 4, 
2005.

ADDRESSES: You may submit comments, identified by RIN 1505-AB51, by 
either of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Regulations Branch, Office of Regulations and 
Rulings, Bureau of Customs and Border Protection, 1300 Pennsylvania 
Avenue, NW. (Mint Annex), Washington, DC 20229.
    Comments submitted may be inspected at the Regulations Branch, 
Office of Regulations and Rulings, Bureau of Customs and Border 
Protection, 799 9th Street, NW., 5th Floor, Washington, DC.

FOR FURTHER INFORMATION CONTACT: Paul Pizzeck, Esq. or George F. 
McCray, Esq., Intellectual Property Rights Branch, Office of 
Regulations and Rulings, (202) 572-8710.

SUPPLEMENTARY INFORMATION:

[[Page 59563]]

Background

    Due to a global increase in piracy and an increased risk to owners 
of protected copyrighted works as a result of technological advances 
available to those pirating such works, the Bureau of Customs and 
Border Protection (CBP) is proposing regulations that allow CBP to be 
more responsive to claims of piracy. In this document, CBP is proposing 
changes designed to better facilitate the recordation process with CBP 
for certain works and to strengthen the enforcement procedures to 
protect those rights.

Recordation of Protected Copyrighted Works

    CBP is proposing several changes to subpart D of part 133 of the 
CBP Regulations regarding the recordation process, as set forth below.
Protection of Sound Recordings and Motion Pictures or Similar Audio-
Visual Works Pending Registration With the U.S. Copyright Office
    Presently, the CBP Regulations provide that only those claims to 
copyright, foreign and domestic, which have been registered with the 
U.S. Copyright Office may be recorded with CBP. Subparts D and E of 
part 133, CBP Regulations (19 CFR part 133, subparts D and E) prohibit 
the importation of piratical works that have been properly registered 
and recorded. However, piratical copies of sound recordings and motion 
pictures or similar audio-visual works are often found in the market 
before the owner of a copyright in those works can effect registration 
of the copyright with the U.S. Copyright Office. Although the 
copyrightability of these types of works is rarely a substantive issue, 
because of the time lapse between the application for registration and 
the granting of registration with the U.S. Copyright Office, 
significant imports of piratical articles can often occur before the 
copyright owner is able to secure registration with the U.S. Copyright 
Office.
    For these types of works, it is during the periods of time prior to 
and immediately following the release of the work in which piracy is 
most likely to occur. As a result, pre-release copyright registration 
applications are generally avoided due to concerns about leaks arising 
from the sample copies submitted with the application which are made 
available to the public.
    Securing border protection simultaneously with (or in some cases 
prior to) the commercial release of sound recordings and motion 
pictures or similar audio-visual works should help to prevent the 
importation into the U.S. of piratical goods. As a result, CBP is 
proposing to revise subparts D and E of part 133, CBP Regulations, in 
order to provide for border enforcement of U.S. copyrights for sound 
recordings and motion pictures or similar audio-visual works in which 
copyrightability is rarely a substantive issue, that are pending 
registration with the U.S. Copyright Office.
    Concerning sound recordings and motion pictures or similar audio-
visual works, CBP intends to accept a copy of a valid application for 
registration that has been filed with the U.S. Copyright Office as 
evidence of a copyrightable interest entitled to protection by CBP. The 
proposed regulations require that an applicant provide to CBP proof of 
registration with the U.S. Copyright Office no later than six months 
after the date of the application for recordation. If the applicant 
fails to provide proof of registration in a timely manner, CBP would 
cancel the related recordation. In addition, CBP proposes to reserve 
the right to cancel any recordation which it determines to have been 
obtained in any manner contrary to law. Permitting copyright owners of 
those certain categories of works for which copyrightability is rarely 
a substantive issue to make an initial recordation with CBP based on a 
filed, pending application for copyright registration rather than a 
perfected certificate of registration, will allow CBP to prevent the 
importation of piratical goods prior to the completion of the 
registration process.
    Accordingly, in Sec.  133.32 which covers the recordation procedure 
for protected copyrighted works, a new paragraph (b)(4) is proposed to 
include claims to copyright in sound recordings and motion pictures or 
similar audio-visual works which are not yet registered with the U.S. 
Copyright Office.
    CBP notes that the above proposed change may result in an increased 
number of applications for recordation and, as each application is 
required to be accompanied by a $190 fee, an increased administrative 
burden in the processing of an increased number of individual payments. 
In order to mitigate processing costs for business and government, we 
are considering allowing alternative fee arrangements. For example, one 
annual payment may be made in lieu of individual application fees. The 
difference between the amount paid per recordation under the 
alternative arrangement and the standard single recordation fee 
(currently, $190) would not exceed the difference in processing costs. 
We are particularly interested in any comments on the fairness, equity, 
and potential administrative efficiency of such arrangements under 31 
U.S.C. 9701.
Non-U.S. Works Entitled to Border Enforcement Protection
    Under the current regulations, in order to seek protection from the 
importation of piratical copies, non-U.S. claimants holding a copyright 
entitled to enforcement are required to provide CBP with a valid 
certificate of registration issued by the U.S. Copyright Office and to 
record such registration with CBP. However, because most countries do 
not have registration systems and most non-U.S. copyright claimants do 
not register their works in the U.S. as a matter of course, and at the 
same time, due to technological advances available for pirating such 
works, there is an overall global increase in piracy and increased risk 
to owners of protected copyrighted works originating from throughout 
the world. Accordingly, CBP believes that it would be appropriate for 
non-U.S. claimants holding copyrights in such works to be entitled to 
record their claims with CBP regardless of whether they have registered 
their copyrights with the U.S. Copyright Office at the time of 
recordation.
    Accordingly, in Sec.  133.31(a) covering protected copyrighted 
works eligible for recordation, new regulatory text is proposed to 
include, among other things, certain claims to copyright in non-U.S. 
works that have not been registered with the U.S. Copyright Office, but 
which are recognized under the Berne Convention for the Protection of 
Literary and Artistic Works (Berne Convention).
Recordation Application Process
    Based on the above described changes, CBP is also proposing to 
amend Sec.  133.32 of the CBP Regulations (19 CFR 133.32) which 
outlines the procedure for recordation and the information required in 
all applications to record a copyright with CBP. To carry out CBP 
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 U.S.C. 104, 
new paragraphs (b)(3) and (4) are proposed to be added to expand Sec.  
133.32 to provide for such claims.
    New paragraph (b)(3) would permit owners of claims to copyrights in 
non-U.S. works to apply for recordation with CBP for the enforcement of 
such claims, even if not registered with the U.S. Copyright Office. 
This new paragraph

[[Page 59564]]

sets forth that non-U.S. works will be entitled to border enforcement 
protection when sufficient evidence of ownership of copyright in those 
works is provided to CBP through recordation with CBP. Sufficient 
evidence of ownership consists of a written affidavit (in English), 
appropriately sworn to by a duly authorized party, validating the 
existence, ownership, and nature of the rights claimed.
    New paragraph (b)(4) would allow owners of claims to copyrights in 
U.S. sound recordings and motion pictures or similar audio-visual works 
for which copyrightability is rarely a substantive issue and for which 
securing border protection on an immediate basis is essential for 
purposes of preventing the importation of piratical articles, to record 
these works with CBP when registration is pending with the U.S. 
Copyright Office. The filing of such a claim will require the 
submission to CBP of a copy of a valid registration application 
officially filed with the U.S. Copyright Office for the specific work. 
Claims for protection made pursuant to either provision ((b)(3) or (4)) 
will be subject to independent verification by CBP, which will maintain 
sole discretion as to whether to accept such claims for enforcement.
    In addition, to further clarify and simplify the recordation 
process and reduce the burden on those applying for recordation of 
claims to copyright, CBP is proposing other changes to Sec. Sec.  
133.32 and 133.33 which would: (1) Allow a ``duly appointed 
representative'' to record a claim to copyright for the copyright owner 
thereby eliminating the need for the copyright owner to personally file 
the application; (2) eliminate the requirement that an applicant supply 
four additional photocopies (or likenesses) of the protected 
copyrighted work with the application; (3) update the address to which 
completed applications are submitted; and (4) update the name of the 
agency to which fees are submitted for recordation of copyright to 
reflect the new name of the former U.S. Customs Service.
    CBP is also proposing to require information regarding the 
citizenship of a copyright owner. Moreover, the current regulation 
requires that photographic or other likenesses be provided with an 
application for recordation in order to ensure that CBP has adequate 
information regarding a claim to copyright to enforce such rights. 
Works such as books, magazines, periodicals and sound recordings are 
excepted from this requirement. CBP is proposing to require that, as 
appropriate, either a sample, a digital image, or photograph of the 
protected work be submitted with the application to record the 
copyright. CBP is further proposing to require samples of sound 
recordings.

Enforcing the Prohibition on the Importation of Piratical Articles

    CBP is proposing several changes to subpart E of part 133 of the 
CBP Regulations to achieve consistency with the above proposed changes 
concerning subpart D of part 133. The proposed changes, as set forth 
below, also serve to strengthen CBP's ability to enforce the 
prohibition against the importation of piratical articles.
Definition of ``Protected Copyrighted Works''
    Section 133.42(a) currently provides that ``Infringing copies or 
phonorecords are `piratical' articles.'' In order to more accurately 
and completely define ``piratical articles,'' CBP is proposing to 
revise paragraph (a) of Sec.  133.42 to define ``piratical articles'' 
as those which constitute unlawful copies (made without the 
authorization of the copyright owner) or phonorecords of ``protected 
copyrighted works.'' The proposed amended language defines ``protected 
copyrighted works'' to encompass works registered with the U.S. 
Copyright Office and recorded with CBP, non-U.S. works which are 
entitled to protection under 17 U.S.C. 104 (including sound recordings 
and motion pictures or similar audio-visual works) for which relevant 
ownership information is recorded with CBP, and certain U.S. works 
pending registration with the U.S. Copyright Office that are duly 
recorded with CBP.
Disclosure to Copyright Owners Upon Infringement
    CBP has determined that, in order to pursue all avenues of relief 
from copyright infringement, including seeking criminal prosecution of 
violators and pursuing private civil remedies for copyright 
infringement, an affected copyright owner must have access to certain 
information regarding parties attempting to import infringing piratical 
articles. In cases involving seizures of articles that circumvent 
copyright protection systems (technological measures) under the Digital 
Millennium Copyright Act (Pub. L. 105-304, 112 Stat. 2860, DMCA) (see 
Other Proposed Changes to the Regulations below), such information 
would be provided to the producers, or their duly authorized agents, of 
such copyright protection systems. Accordingly, CBP is proposing to 
amend its disclosure provisions regarding copyright violations in order 
to expand the information provided to copyright owners, or, in the case 
of articles seized pursuant to 19 CFR 133.42(c)(3) information provided 
to duly authorized agents of producers of copyright protection systems 
(technical measures), when merchandise violating their rights is seized 
at the border including information regarding articles seized for 
violation of the DMCA.
    Currently Sec.  133.42(d) provides that, when CBP seizes goods 
under that section, CBP will disclose to the owner of the copyright:
    (1) The date of importation;
    (2) The port of entry;
    (3) A description of the merchandise;
    (4) The quantity involved;
    (5) The name and address of the manufacturer;
    (6) The country of origin of the merchandise;
    (7) The name and address of the exporter; and
    (8) The name and address of the importer.
    CBP is proposing to amend Sec.  133.42(d) to provide that, in 
addition to the information above, when CBP seizes goods under that 
section, CBP will also disclose to the copyright owner or, for 
merchandise seized pursuant to Sec.  133.42(c)(3), to the producer of 
the copyright protection system:
    (9) 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 on the Suspicion of Piratical Copies
    Section 133.43 contains the current procedures to be employed when 
CBP suspects that certain articles may be piratical articles. The 
current Sec.  133.43 provides for: (1) Notice of detention of suspected 
articles to an importer and to a copyright owner, including the 
disclosure of certain information; (2) the disclosure of samples of 
suspected articles to the copyright owner; (3) the release of the goods 
in the case of inaction by the copyright owner and in cases where the 
copyright owner makes a written demand for the exclusion of the 
suspected articles, a bonding requirement and exchange of briefs 
process; and (4) alternative procedures to the administrative process 
(court action). In general, the current regulations provide that upon 
notification by a port director that CBP has reason to believe that an 
imported article may be a piratical copy or phonorecord of a 
copyrighted work, the

[[Page 59565]]

copyright owner may file a written demand for exclusion of the 
suspected infringing copies. Additional evidence, legal briefs, and 
other pertinent material to substantiate a claim or denial of piracy 
are then exchanged between the parties and eventually submitted to CBP 
for administrative review.
    CBP believes that the existing procedures contained in Sec.  133.43 
are an outdated and inefficient mechanism to address the situation 
where CBP has a suspicion that certain goods may be piratical. These 
provisions are rarely used and unduly burdensome on CBP and all other 
parties involved. Essentially, these procedures interfere with CBP's 
ability to conduct the required investigation in a timely and efficient 
manner. Moreover, the process inhibits CBP from applying its expertise 
in an expedient manner to determine whether or not merchandise is 
piratical. Most importantly, these procedures are ineffective in aiding 
CBP in resolving the issue of whether certain merchandise is indeed 
piratical.
    Likewise, Sec.  133.44 outlines the actions to be taken when a 
claim of piracy under Sec.  133.43 is sustained or denied.
    Accordingly, CBP is proposing to remove Sec.  133.43 and Sec.  
133.44 in their entirety. Instead, CBP is proposing regulations 
allowing CBP to detain merchandise when CBP has reasonable suspicion to 
believe that the merchandise is piratical and to seize merchandise that 
it determines to be piratical. In addition, the proposed regulations 
would facilitate the exchange of information between the copyright 
owners and CBP in order to assist CBP in making this determination.
Detention of Sound Recordings and Motion Pictures or Similar Audio 
Visual Works
    CBP is proposing to add regulatory text in a newly created 
paragraph (b)(2) to Sec.  133.42 that specifies CBP's power to detain 
articles that appear to be piratical copies of sound recordings, motion 
pictures, or similar audio-visual works to conduct further 
investigation. Accordingly, paragraph (b)(2) in Sec.  133.42 proposes 
to 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. Reasonable 
suspicion that certain articles are piratical may 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 Samples Less Than $50.00
    Section 133.42(e) of the CBP Regulations (19 CFR 133.42(e)) allows 
CBP to provide a sample of suspect merchandise to the owner of the 
copyright. The copyright owner seeking to obtain a sample is required 
to furnish a bond to CBP. CBP is proposing to allow port directors, at 
their discretion, to waive the bond requirement where the value of the 
sample is less than $50.00.

Other Proposed Changes to the Regulations

Adding DMCA Violations to Enforcement Provisions of Subpart E
    In 1998, Congress enacted the DMCA. Among other things, the DMCA 
prohibits the circumvention of technological measures used by copyright 
owners to protect their works. A technological measure ''effectively 
controls access to a work'' if the measure, in the ordinary course of 
its operation, requires the application of information, or a process or 
a treatment, with the authority of the copyright owner, to gain access 
to the work.
    Although the current CBP Regulations do not specifically provide 
for detention and seizure of articles that constitute violations of the 
DMCA, CBP has implemented the DMCA by providing CBP personnel with 
internal enforcement guidelines and advice on how to enforce DMCA 
violations. Where CBP finds that certain devices violate the DMCA, the 
goods are subject to seizure and forfeiture under 19 U.S.C. 
1595a(c)(2)(C) for a violation of the DMCA (17 U.S.C. 1201(b)(1)).
    Accordingly, CBP is proposing to include provisions for the 
detention and seizure of articles that constitute violations under the 
DMCA to the enforcement provisions of subpart E. Specifically, CBP is 
proposing to add paragraph (b)(3) to Sec.  133.42 to provide for the 
detention of articles that CBP reasonably believes constitute 
violations of 17 U.S.C. 1201(b)(1). Such detentions will be limited to 
30 days in duration. In the event that the Intellectual Property Rights 
(IPR) Branch within CBP's Office of Regulations & Rulings determines 
that such detained articles violate 17 U.S.C. 1201(b)(1), CBP will then 
seize them and institute forfeiture proceedings in accordance with part 
162 of chapter I of the CBP Regulations. Articles determined by the IPR 
Branch not to violate 17 U.S.C. 1201(b)(1), will be released.
    CBP is also proposing to add paragraph (c)(3) to Sec.  133.42 to 
provide for the seizure of articles that the IPR Branch determines to 
violate 17 U.S.C. 1201(b)(1). Importers may petition for relief from 
the seizure and forfeiture under the provisions of part 171 of chapter 
I. Articles that have been seized and forfeited to the U.S. Government 
under part 133 will be disposed of in accordance with Sec.  133.52(b).
Adding Recordings of Live Musical Performances in Violation of 18 
U.S.C. 2319A to Enforcement Provisions of Subpart E
    Section 2319A of title 18 (18 U.S.C. 2319A) states that copies of 
live musical performance that are ``fixed'' outside of the U.S. without 
the consent of the performer or performers involved are subject to 
seizure and forfeiture in the same manner as property imported in 
violation of the customs laws. Although CBP has had enforcement 
guidelines in place for several years, CBP has not promulgated 
regulations implementing section 2319A.
    Accordingly, CBP is proposing to add, at Sec.  133.52(c)(2)(iii), 
recordings of live musical performances determined by CBP to be in 
violation of 18 U.S.C. 2319A to the types of sound recordings subject 
to seizure.

Comments

    Before adopting this proposed regulation as a final rule, 
consideration will be given to any written comments timely submitted to 
CBP, including comments on the clarity of this proposed rule and how it 
may be made easier to understand. Comments submitted will be available 
for public inspection in accordance with the Freedom of Information Act 
(5 U.S.C. 552) and Sec.  103.11(b), CBP Regulations (19 CFR 103.11(b)), 
on normal business days between the hours of 9 a.m. and 4:30 p.m. at 
the Regulations Branch, Office of Regulations and Rulings, Bureau of 
Customs and Border Protection, 799 9th Street, NW., 5th Floor, 
Washington, DC. Arrangements to inspect submitted comments should be 
made in advance by calling Mr. Joseph Clark at (202) 572-8768.

Executive Order 12866

    This document does not meet the criteria for a ``significant 
regulatory action'' as specified in E.O. 12866.

Regulatory Flexibility Act

    Pursuant to the provisions of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), it is certified that these

[[Page 59566]]

proposed amendments will not have a significant economic impact on a 
substantial number of small entities. The regulatory amendments 
reflect, implement, or clarify existing statutory and regulatory 
requirements created to protect the rights of legitimate copyright 
owners. Accordingly, the amendments are not subject to the regulatory 
analysis or other requirements of 5 U.S.C. 603 and 604.

Signing Authority

    The authority to approve regulations concerning copyright 
enforcement, was retained by the Secretary of the Treasury. The signing 
authority for these amendments, therefore, falls under Sec.  0.1(a)(1), 
CBP Regulations (19 CFR 0.1(a)(1)). Accordingly, this document is 
signed by the Secretary of Homeland Security (or his or her delegate) 
and the Secretary of the Treasury (or his or her delegate).

Paperwork Reduction Act

    The collection of information in this document is contained in 
Sec.  133.32(b) of title 19 (19 CFR 133.32(b)). Under Sec.  133.32(b), 
the information would be required and used to record copyrights with 
CBP for border enforcement protection of copyrights. The collection of 
this information would ensure that CBP has adequate information 
regarding a claim to copyright in order to protect the copyright 
owner's rights.
    The collection of information encompassed within this proposed rule 
has been submitted to the Office of Management and Budget (OMB) for 
review in accordance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507). An agency may not conduct, and a person is not required 
to respond to, a collection of information unless the collection of 
information displays a valid control number assigned by OMB.
    Estimated annual reporting and/or recordkeeping burden: 4,000 
hours.
    Estimated average annual burden per respondent/recordkeeper: 2 
hours.
    Estimated number of respondents and/or recordkeepers: 2,000.
    Estimated annual frequency of responses: 1.
    Comments on the collection of information should be sent to the 
Office of Management and Budget, Attention: Desk Officer of the 
Department of the Treasury, Office of Information and Regulatory 
Affairs, Washington, DC 20503. A copy should also be sent to the 
Regulations Branch, Office of Regulations and Rulings, Bureau of 
Customs and Border Protection, 1300 Pennsylvania Avenue, NW. (Mint 
Annex), Washington, DC 20229. Comments should be submitted within the 
time frame that comments are due regarding the substance of the 
proposal.
    Comments are invited on: (a) Whether the collection is necessary 
for the proper performance of the functions of the agency, including 
whether the information will have practical utility; (b) the accuracy 
of the agency's estimate of the burden of the collection of the 
information; (c) ways to enhance the quality, utility, and clarity of 
the information to be collected; (d) ways to minimize the burden of the 
collection of information on respondents, including through the use of 
automated collection techniques or other forms of information 
technology; and (e) estimates of capital or startup costs and costs of 
operations, maintenance, and purchases of services to provide 
information.
    Part 178, CBP Regulations (19 CFR part 178), containing the list of 
approved information collections, would be revised to add an 
appropriate reference to 133.32(b), upon adoption of the proposal as a 
final rule.

List of Subjects in 19 CFR Part 133

    Copying or simulating trademarks, Copyrights, Counterfeit 
trademarks, Customs duties and inspection, Detentions, Fees assessment, 
Imports, Labeling, Penalties, Piratical articles, Prohibited 
merchandise, Reporting and recordkeeping requirements, Restricted 
merchandise, Seizures and forfeitures, Trademarks.

Proposed Amendments to the Regulations

    It is proposed to amend part 133 of the Customs and Border 
Protection Regulations (19 CFR part 133), as discussed above and set 
forth below. For the reasons stated in the preamble, part 133 of the 
CBP Regulations (19 CFR part 133) is proposed to be amended to read as 
follows:

PART 133--TRADEMARKS, TRADE NAMES, AND COPYRIGHTS

    1. The general authority citation for part 133 and the specific 
citation for Sec.  133.42 is revised to read as follows:

    Authority: 15 U.S.C. 1124, 1125; 17 U.S.C. 101, 106, 501, 601, 
602, 603; 19 U.S.C. 66, 1499, 1595a, 1526, 1624; 31 U.S.C. 9701.
* * * * *
    Section 133.42 also issued under 17 U.S.C. 1201(b), 18 U.S.C. 
2319A.
* * * * *
    2. The heading to subpart D is revised to read as follows:

Subpart D--Recordation of Protected Copyrighted Works

    3. Section 133.31 is revised to read as follows:


Sec.  133.31  Recordation of protected copyrighted works.

    (a) Eligible works. The following works, collectively referred to 
in this part as ``protected copyrighted works'', when properly recorded 
with the Bureau of Customs and Border Protection (CBP) in accordance 
with the provisions of Sec.  133.32, are eligible for border 
enforcement by CBP in accordance with the provisions of Sec.  133.42:
    (1) Non-expired claims to copyright in U.S. works which are 
registered with the U.S. Copyright Office and recorded with CBP;
    (2) Claims to copyright in non-U.S. works entitled to protection 
under 17 U.S.C. 104 which are recorded with CBP; and
    (3) Claims to copyright in sound recordings and motion pictures or 
similar audio-visual works eligible for recordation under the 
provisions of Sec.  133.32.
    (b) Persons eligible to record. The owner of a copyright registered 
with the U.S. Copyright Office, including any person who has acquired 
copyright ownership through an exclusive license, assignment, or 
otherwise, who has registered that ownership interest with the U.S. 
Copyright Office, or their duly appointed representative may file an 
application to record that registered copyright. In addition, claimants 
to copyright in non-US works protected under 17 U.S.C. 104 and 
claimants to copyright in sound recordings and motion pictures or 
similar audio-visual works may also file an alternative application to 
record such claims in accordance with the provisions of Sec.  133.32 of 
this subpart. The term ``copyright owner,'' with respect to any of the 
exclusive rights comprised in a copyright (see 17 U.S.C. 106), refers 
to the owner of a particular right protected under title 17.
    (c) Notice of recordation and other action. Applicants will be 
notified of the approval or denial of an application filed in 
accordance with Sec.  133.32 upon completion of review.
    4. Section 133.32 is revised to read as follows:


Sec.  133.32  Procedure for recording protected copyrighted works.

    (a) Address. Applications to record protected copyrighted works 
under this section must be submitted in writing, addressed to the 
Intellectual Property Rights Branch, Office of Regulations and

[[Page 59567]]

Rulings, Bureau of Customs and Border Protection, 1300 Pennsylvania 
Avenue, NW., Washington, DC 20229.
    (b) Contents; format. (1) All recordation applications must include 
the following information (an electronic copyright recordation template 
can be found at the CBP Web site (http://www.cbp.gov)):
    (i) The name, complete business address, and citizenship of the 
copyright owner (or owners) or claimants to copyright for protected 
works (if a partnership, the citizenship of each partner; if an 
association or corporation, the state, country, or other political 
jurisdiction within which it was organized, incorporated, or created);
    (ii) A complete description of the rights asserted which adequately 
identifies the work including, as appropriate, either: a sample of the 
article(s) containing the claimed protected work; a digital image of 
same; or a photograph of same reproduced on paper no larger than 8 \1/
2\'' x 11'' in size (an application will be excepted from this 
requirement if the subject matter is a work such as a book, magazine, 
periodical, or similar copyrighted matter readily identifiable by title 
and author);
    (iii) The foreign title of the work, if different from the U.S. 
title;
    (iv) In the case of copyright in a sound recording, a statement 
setting forth the name(s) of the performing artist(s) and any other 
information identifying the content thereof appearing on the 
reproduction surface of the sound recording or its label or container; 
and
    (v) The place(s) of manufacture of genuine copyrighted articles and 
the identity of the manufacturer(s).
    (2) For claims to copyright in U.S. works which have been 
registered with the U.S. Copyright Office, recordation applications 
must also contain an additional certificate of registration issued by 
the U.S. Copyright Office. Where the name of the applicant differs from 
the name of the copyright owner identified in the registration 
certificate issued by the U.S. Copyright Office, the application must 
be accompanied by a certified copy of any assignment, exclusive 
license, or other document showing that the applicant has acquired an 
ownership interest in the copyright.
    (3) For claims to copyright in non-U.S. works, including sound 
recordings and motion pictures or similar audio-visual works, entitled 
to protection under 17 U.S.C. 104, recordation applications must also 
contain a written affidavit (in English), appropriately sworn to by a 
duly authorized party, validating the existence, ownership, and nature 
of the rights claimed. Claims for protection made under this provision 
are subject to independent verification by CBP, which maintains sole 
discretion as to whether to accept such claims for enforcement. CBP may 
require additional information where the written affidavit fails to 
provide sufficient clarity as to the nature or ownership of the work 
for which enforcement is being sought.
    (4) For claims to copyright in U.S. sound recordings and motion 
pictures or similar audio-visual works pending registration with the 
U.S. Copyright Office, recordation applications must also contain a 
copy of a valid registration application with respect to the work and 
acceptable proof that such has been officially filed with the U.S. 
Copyright Office. Claims for protection made under this section are 
subject to independent verification by CBP, which maintains sole 
discretion as to whether to accept such claims for enforcement. CBP may 
require additional information where the copy of the registration 
application provided fails to provide sufficient clarity as to the 
nature or ownership of the work for which enforcement is being sought. 
The applicant must provide proof of registration with the U.S. 
Copyright Office no later than six months after the date of the 
application for recordation. Such proof will consist of an ``additional 
certificate of registration'' (see 17 U.S.C. 706) issued by the U.S. 
Copyright Office. In the event that the applicant fails to provide CBP 
with proof that a registration has been issued by the U.S. Copyright 
Office, CBP will cancel the related recordation. Where the name of the 
applicant for CBP recordation differs from the name of the copyright 
owner identified in the registration application filed with the U.S. 
Copyright Office, the application for recordation must be accompanied 
by a certified copy of any assignment, exclusive license, or other 
document showing that the party applying for recordation has acquired 
an ownership interest in the copyright.
    (c) CBP reserves the right to cancel any recordation which it 
determines has been obtained in any manner contrary to law.
    (d) Fee. Applications to record protected copyrighted works with 
CBP must be accompanied by a fee of $190 in the form of a check or 
money order made payable to the Bureau of Customs and Border Protection 
for each claim to copyright to be recorded. In order to reduce 
processing costs for business and government, CBP may enter into 
alternative fee arrangements with persons, companies, agents, or 
associations. Such alternative fee structures will be subject to review 
on a periodic basis to ensure fairness, equity, and administrative 
efficiency. Fees in any such alternative structure will reflect costs 
for services provided in processing the applications for recordation, 
including data input, tracking of amounts paid, review for sufficiency, 
interface with field officers (principally, maintenance of intranet and 
internet databases for field and trade use), record maintenance, and 
any correspondence and associated administrative costs regarding 
filing, issue resolution, and recordation. Any recordation under such 
an alternative arrangement will remain in effect for twenty years or 
until the copyright ownership expires. Any lump sum fee arrangement 
will be valid only for renewable annual periods. No such alternative 
arrangement will become effective until published in the Federal 
Register by DHS/CBP, with Treasury concurrence. The difference in the 
per recordation rate under the alternative arrangement and the standard 
single recordation fee should not exceed the difference in processing 
costs. If the difference in the per recordation rate under the 
alternative arrangement and the standard single recordation fee exceeds 
the difference in processing costs, the alternative arrangement fees in 
the following year will be adjusted to compensate for that difference.


Sec.  133.33  [Removed]

    5. Section 133.33 is removed and reserved.
    6. The heading to subpart E is revised to read as follows:

Subpart E--Enforcement of the Prohibition on Importation of 
Infringing Copies or Phonorecords

    7. Section 133.42 is revised to read as follows:


Sec.  133.42  Piratical articles; Unlawful copies or phonorecords of 
protected copyrighted works.

    (a) Definition. ``Piratical articles'' are those which are 
unlawfully made (without the authorization of the copyright owner) 
copies or phonorecords of protected copyrighted works. ``Protected 
copyrighted works'' for these purposes refers to works falling into any 
of the following categories:
    (1) U.S. works registered with the U.S. Copyright Office and duly 
recorded with CBP pursuant to Sec.  133.32;
    (2) Non-U.S. works that are protected under 17 U.S.C. 104 
(including sound recordings and motion pictures or similar audio-visual 
works) and where relevant ownership information is recorded with CPB 
pursuant to Sec.  133.32;

[[Page 59568]]

    (3) U.S. sound recordings and motion pictures or similar audio-
visual works which have been duly recorded with CBP pursuant to Sec.  
133.32.
    (b) Detention.
    (1) Detention of suspected piratical articles (other than sound 
recordings and motion pictures or similar audio-visual works) that are 
recorded with CBP. Imported articles appearing to be piratical copies 
of protected copyrighted works, other than sound recordings and motion 
pictures or similar audio-visual works, for which a claim to copyright 
has previously been recorded with CBP pursuant to Sec.  133.32, may be 
detained for a period not to exceed 30 days, if CBP has reasonable 
suspicion to believe that they constitute piratical copies. Upon 
determination by the IPR Branch, CBP Office of Regulations & Rulings, 
that such detained articles constitute piratical copies, CBP will seize 
them and institute forfeiture proceedings in accordance with part 162 
of this chapter. Articles that are not determined by the IPR Branch 
within 30 days to be piratical copies will be released.
    (2) Detention of suspected piratical sound recordings and motion 
pictures or similar audio-visual works. Imported articles consisting of 
sound recordings and motion pictures or similar audio-visual works may 
be detained for a period not to exceed 30 days if CBP has reasonable 
suspicion to believe that they constitute piratical copies. Where the 
genuine works or sound recordings are not recorded with CBP at the time 
of detention of suspected piratical copies, recordation must take place 
no later than 30 days after the date on which the suspect articles were 
detained. Upon determination by CBP that such detained articles 
constitute piratical copies, CBP will seize them and institute 
forfeiture proceedings in accordance with part 162 of this chapter, 
provided that the copyright has been recorded with CBP pursuant to 
Sec.  133.32. Articles not recorded with CBP within 30 days or articles 
which are not determined by CBP to be piratical copies will be 
released.
    (3) Detention of articles suspected of constituting violations of 
the Digital Millennium Copyright Act (17 U.S.C. 1201(b)(1)). Imported 
articles appearing to constitute violations of 17 U.S.C. 1201(b)(1) may 
be detained for a period not to exceed 30 days if CBP reasonably 
believes that such articles are primarily designed or produced for the 
purpose of circumventing protection afforded by a technological measure 
that effectively protects a right of a copyright owner; have only 
limited commercially significant purpose or use other than to 
circumvent such protection; or are marketed by the importer or 
trafficker, or another acting in concert with the importer or 
trafficker, for use in circumventing such protection. Upon 
determination by the IPR Branch, CBP Office of Regulations & Rulings, 
that such detained articles constitute violations of 17 U.S.C. 
1201(b)(1) CBP will seize them and institute forfeiture proceedings in 
accordance with part 162 of this chapter. Articles that are not 
determined by the IPR Branch to constitute violations of 17 U.S.C. 
1201(b)(1) will be released.
    (c) Seizure and forfeiture. Articles which have been seized and 
forfeited to the U.S. Government will be disposed of in accordance with 
Sec.  133.52 of this part, subject to the importer's right to petition 
for relief from the seizure and forfeiture under the provisions of part 
171 of this chapter.
    (1) Seizure of copies of articles (other than sound recordings and 
motion pictures or similar audio-visual works). (i) Imported articles 
which, at the time of presentment to CBP, clearly constitute piratical 
copies of protected copyrighted works other than sound recordings and 
audio-visual works, for which a claim to copyright has previously been 
recorded with CBP pursuant to Sec.  133.32 are subject to immediate 
seizure. After seizure, piratical goods are subject to forfeiture 
proceedings in accordance with part 162 of this chapter. CBP will 
notify the importer of the seizure in accordance with part 162 of this 
chapter.
    (ii) Imported articles detained pursuant to Sec.  133.42(b)(1) that 
are determined by CBP to constitute piratical copies are subject to 
seizure. After seizure, piratical goods are subject to forfeiture 
proceedings in accordance with part 162 of this chapter. CBP will 
notify the importer of the seizure in accordance with part 162 of this 
chapter.
    (2) Seizure of sound recordings and motion pictures or similar 
audio-visual works. (i) Imported articles which, at the time of 
presentment to CBP, clearly constitute piratical copies or phonorecords 
of protected copyrighted works, for which a claim to copyright has 
previously been recorded with CBP pursuant to Sec.  133.32 are subject 
to immediate seizure. After seizure, piratical goods are subject to 
forfeiture proceedings in accordance with part 162 of this chapter. CBP 
will notify the importer of the seizure in accordance with part 162 of 
this chapter.
    (ii) Imported articles which have been detained pursuant to Sec.  
133.42(b)(2), for which a claim to copyright has been recorded with CBP 
within 30 days after the date on which the suspect articles were 
detained, that are determined by CBP to constitute piratical copies are 
subject to seizure. After seizure, piratical goods are subject to 
forfeiture proceedings in accordance with part 162 of this chapter. CBP 
will notify the importer of the seizure in accordance with part 162 of 
this chapter.
    (iii) Recordings of live musical performances determined by CBP to 
be in violation of 18 U.S.C. 2319A will be subject to seizure 
regardless of the recordation of any right with CBP. After seizure, 
piratical goods are subject to forfeiture proceedings in accordance 
with part 162 of this chapter. CBP will notify the importer of the 
seizure in accordance with part 162 of this chapter.
    (3) Seizure of articles determined by CBP to constitute violations 
of the Digital Millennium Copyright Act (17 U.S.C. 1201(b)(1)). 
Imported articles determined by the IPR Branch, CBP Office of 
Regulations & Rulings to constitute violations of 17 U.S.C. 1201(b)(1) 
are subject to seizure regardless of the recordation of any right with 
CBP. After seizure, such goods are subject to forfeiture proceedings in 
accordance with part 162 of this chapter. CBP will notify the importer 
of the seizure in accordance with part 162 of this chapter.
    (d) Disclosure. When merchandise is seized under this section, CBP 
will disclose to the owner of the protected copyrighted work (in the 
case of copyright piracy) or the producer, or duly authorized agent 
thereof, of circumvented copyright protection systems (in seizures 
effected for DMCA violations), the following information, if available, 
within 30 days, excluding weekends and holidays, of the date of the 
notice of seizure:
    (1) The date of importation;
    (2) The port of entry;
    (3) A description of the merchandise;
    (4) The quantity involved;
    (5) The name and address of the manufacturer;
    (6) The country of origin of the merchandise, if known;
    (7) The name and address of the exporter;
    (8) The name and address of the importer; and
    (9) 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.
    (e) Samples available to the copyright owner. At any time following 
detention or seizure of the merchandise, CBP may provide a sample of 
the suspect

[[Page 59569]]

merchandise to the owner of the protected work for examination, 
testing, or any other use in pursuit of a related private civil remedy 
for copyright infringement. To obtain a sample under this section, the 
owner of the protected work must furnish to CBP a bond in the form and 
amount specified by the port director at the port of importation, 
conditioned to hold the U.S., its officers and employees, and the 
importer or owner of the imported article harmless from any loss or 
damage resulting from the furnishing of a sample by CBP to the 
copyright owner. This requirement may be waived at the discretion of 
the port director where the value of the sample is less than $50.00. 
CBP may demand the return of the sample at any time. The owner of the 
protected work must return the sample to CBP upon demand or at the 
conclusion of the examination, testing, or other use in pursuit of a 
related private civil remedy for copyright infringement. In the event 
that the sample is damaged, destroyed, or lost while in the possession 
of the owner of the protected work, the owner of the protected work 
must, in lieu of return of the sample, certify to CBP that: ``The 
sample described as [insert description] provided by CBP pursuant to 
Sec.  133.42(e) of the CBP Regulations was (damaged/destroyed/lost) 
during examination, testing, or other use.''
    (f) Parallel Imports. Copies or phonorecords made lawfully and 
imported into the U.S. without the consent of the owner of the 
protected copyrighted work, are not subject to detention, seizure, or 
forfeiture by CBP.


Sec.  133.43  [Removed]

    8. Section 133.43 is removed and reserved.


Sec.  133.44  [Removed]

    9. Section 133.44 is removed and reserved.
    10. Section 133.46 is revised to read as follows:


Sec.  133.46  Demand for redelivery of released articles.

    If CBP determines that articles which have been released from CBP 
custody are subject to the prohibitions or restrictions of this 
subpart, the appropriate field officer will promptly make demand for 
redelivery of the articles pursuant to Sec.  141.113 of this chapter, 
under the terms of the bond on CBP Form 301, containing the bond 
conditions set forth in Sec.  113.62 of this chapter. If the articles 
are not redelivered to CBP custody, a claim for liquidated damages may 
be made in accordance with Sec.  141.113(h) of this chapter.

    Dated: September 30, 2004.
Robert C. Bonner,
Commissioner of Customs and Border Protection.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 04-22334 Filed 10-4-04; 8:45 am]
BILLING CODE 4820-02-P