[Code of Federal Regulations]
[Title 19, Volume 1]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 19CFR133.43]

[Page 633-635]
 
                        TITLE 19--CUSTOMS DUTIES
 
  CHAPTER I--UNITED STATES CUSTOMS SERVICE, DEPARTMENT OF THE TREASURY
 
PART 133--TRADEMARKS, TRADE NAMES, AND COPYRIGHTS--Table of Contents
 
            Subpart E--Importations Violating Copyright Laws
 
Sec. 133.43  Procedure on suspicion of infringing copies.

    (a) Notice to the importer. If the port director has any reason to 
believe that an imported article may be an infringing copy or 
phonorecord of a recorded copyrighted work, he shall withhold

[[Page 634]]

delivery, notify the importer of his action, and advise him that if the 
facts so warrant he may file a statement denying that the article is in 
fact an infringing copy and alleging that the detention of the article 
will result in a material depreciation of its value, or a loss or damage 
to him. The port director also shall advise the importer that in the 
absence of receipt within 30 days of a denial by the importer that the 
article constitutes an infringing copy or phonorecord, it shall be 
considered to be such a copy and shall be subject to seizure and 
forfeiture.
    (b) Notice to copyright owner. If the importer of suspected 
infringing copies or phonorecords files a denial as provided in 
paragraph (a) of this section, the port director shall furnish to the 
copyright owner the following information, if available, within 30 days, 
excluding weekends and holidays, of the receipt of the importer's 
denial:
    (1) The date of importation;
    (2) The port of entry;
    (3) A description of the merchandise;
    (4) The quantity involved;
    (5) The country of origin of the merchandise; and
    (6) Notice that the imported article will be released to the 
importer unless, within 30 days from the date of the notice, the 
copyright owner files with the port director:
    (i) A written demand for the exclusion from entry of the detained 
imported article; and
    (ii) A bond, in the form and amount specified by the port director, 
conditioned to hold the importer or owner of the imported article 
harmless from any loss or damage resulting from Customs detention in the 
event the Commissioner or his designee determines that the article is 
not an infringing copy prohibited importation under section 602 of the 
Copyright Act of 1976 (17 U.S.C. 602) (See part 113 of this chapter).
    (c) Samples available to the copyright owner. At any time following 
presentation of the merchandise for Customs examination, but prior to 
seizure, Customs may provide a sample of the suspect merchandise to the 
owner of the copyright for examination or testing to assist in 
determining whether the article imported is a piratical copy. To obtain 
a sample under this section, the copyright owner must furnish Customs a 
bond in the form and amount specified by the port director, conditioned 
to hold the United States, 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 Customs to the copyright 
owner. Customs may demand the return of the sample at any time. The 
owner must return the sample to Customs upon demand or at the conclusion 
of the examination or testing. In the event that the sample is damaged, 
destroyed, or lost while in the possession of the copyright owner, the 
owner shall, in lieu of return of the sample, certify to Customs that: 
``The sample described as [insert description] provided pursuant to 19 
CFR 133.43(c) was (damaged/destroyed/lost) during examination or testing 
for copyright infringement.
    (d) Result of action or inaction by copyright owner. After notice to 
the copyright owner that delivery is being withheld for imported 
articles suspected of being infringing copies of his recorded 
copyrighted work, the port director shall proceed in accordance with the 
following procedures:
    (1) Demand and bond; exchange of briefs. If the copyright owner 
files a written demand for exclusion of the suspected infringing copies 
together with a proper bond, the port director shall promptly notify the 
importer and copyright owner that, during a specified time limited to 
not more than 30 days, they may submit any evidence, legal briefs or 
other pertinent material to substantiate the claim or denial of 
infringement. The burden of proof shall be upon the party claiming that 
the article is in fact an infringing copy.
    (i) Exchange of briefs. Before timely submitting the additional 
evidence, legal briefs, or other pertinent material to Customs, pursuant 
to paragraph (c)(1) of this section, in regard to the disputed claim of 
infringement, the importer and the copyright owner shall first provide 
each other with a copy of all such information, including the importer's 
denial of infringement and the copyright owner's demand for exclusion. 
The subsequent submission of this

[[Page 635]]

information to Customs shall be accompanied by a written statement 
confirming that a copy has already been provided to the opposing party. 
The port director shall notify the importer and the copyright owner that 
they shall have additional time, not to exceed 30 days, in which to 
provide a response to the arguments submitted by the opposing party, and 
that rebuttal arguments, timely submitted, shall be fully considered in 
the decision-making process. During this rebuttal period and before 
timely submitting the rebuttal arguments to Customs, the importer and 
the copyright owner shall first provide each other with a copy of all 
such material. The submission of this rebuttal material to Customs shall 
be accompanied by a written statement confirming that a copy has been 
provided to the opposing party. The port director shall not accept any 
additional material from the parties to substantiate the claim or denial 
of infringement after the final 30-day rebuttal period expires.
    (ii) Decision. Upon receipt of rebuttal arguments, or 30 days after 
notification if no rebuttal arguments are submitted, the port director 
shall forward the entire file, together with a sample of each style that 
is considered possibly infringing, to Customs Headquarters, (Attention: 
International Trade Compliance Division, Office of Regulations and 
Rulings), for decision on the disputed claim of infringement. The final 
decision on the disputed claim of infringement shall be forwarded to the 
port director who shall send a copy thereof to the copyright owner as 
well as to the importer.
    (2) Infringement disclaimed or unsupported. If the copyright owner 
disclaims that the specified imported article is an infringing copy of 
his recorded copyrighted work, or fails to present sufficient evidence 
or proof to substantiate a claim of infringement, the port director 
shall release the detained shipment to the importer and all further 
importations of the same article, by whomever imported, without further 
notice to the copyright owner.
    (3) Failure to file demand or bond. If the copyright owner fails to 
file a written demand for exclusion and bond as required by paragraph 
(b) of this section, the port director shall release the detained 
articles to the importer and notify the copyright owner of the release.
    (4) Withdrawal of bond. Where the copyright owner has posted a bond 
on the grounds that the imported article is infringing, the copyright 
owner may not withdraw the bond until a decision on the issue of 
infringement has been reached.
    (e) Alternative procedure: court action. As an alternative to the 
administrative procedure described in this section, the copyright owner, 
whether or not he has recorded his copyright with Customs, may seek a 
court order enjoining importation of the article. To obtain Customs 
enforcement of an injunction, the copyright owner shall submit a 
certified copy of the court order to the Commissioner of Customs, 
Attention: Office of the Chief Counsel, Washington, DC 20229. In 
addition, if the copyright in question is not recorded with Customs, the 
copyright owner shall submit the $190 fee required by Sec. 133.33(b) 
and, if the work is a three-dimensional or other work not readily 
identifiable by title and author, 5 photographic or other likenesses 
reproduced on paper approximately 8" x 10\1/2\" in size.

[T.D. 87-40, 52 FR 9475, Mar. 25, 1987, as amended by T.D. 93-87, 58 FR 
57740, Oct. 27, 1993; T.D. 98-21, 63 FR 12000, Mar. 12, 1998; 63 FR 
15088, Mar. 30, 1998]