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extremely obscure provision of the first proviso of section 16, added by amendment in 1926, which refers to "works printed or produced *** by any other process than those above specified in this section." The legislative history of that phrase makes clear that it was intended to cover copies reproduced entirely by methods such as, for example, typewriting, mimeography or photography-which do not involve any of the processes specified earlier in the section. Thus, the second sentence of section 601 (c) is not intended to enlarge the basic requirements of the first sentence or to apply in cases where all or any of the specified processes-typesetting, platemaking, lithography, photoengraving, printing, and binding-were employed.
It would be preferable, of course, if subsection (c) could say clearly what it means, rather than deliberately preserving the uncertainties of the present statute. However, as things now stand, further efforts at accommodation between the interests on both sides will be necessary to accomplish this result.
5. EFFECT OF VIOLATION
Subsection (d) of section 601 provides the sanctions for the manufacturing requirements:
Importation or public distribution of copies in violation of this section does not invalidate protection for a work under this title. However, in any action for infringement of the exclusive rights to reproduce and distribute copies of the work, the infringer has a complete defense if:
(1) he proves that copies of the work have been imported into or publicly distributed in the United States in violation of this section, and that the infringing copies were manufactured in the United States; and
(2) the owner of such exclusive rights then fails to sustain the burden of proving either
(A) that such importation or public distribution was without his authority or acquiescence; or
(B) that the infringement was commenced more than 3 months after the effective date of registration for an authorized edition of the work, the copies of which have been manufactured in the United States.
This would mean, in effect, that compliance with the manufacturing -requirements would no longer represent a condition of copyright protection; and that there would no longer be any need to observe the special "ad interim" time limits and registration requirements of the present law. If copies are imported or distributed in violation of the requirements, the copyright owner's rights to reproduce the work in phonorecords, to make derivative works including dramatizations and motion pictures, and to perform or exhibit the work publicly, would not be affected.
Violation of the manufacturing requirements would affect only the exclusive rights to reproduce and distribute copies and, even then, would not result in the complete loss of those rights. Under subsection (d) an infringer of the exclusive rights of making and distributing copies would be given a complete defense if: (1) the copyright owner authorized or acquiesced in an importation or public distribution of copies in violation of the manufacturing requirements, and (2) the infringing copies were manufactured in the United States. The subsection also provides, in effect, that a copyright owner can reclaim his full exclusive rights by manufacturing an edition in the United States; the infringer's defense would not be available if his infringement were commenced more than three months after registration for an authorized edition manufactured here.
The burden of proving a violation of the manufacturing clause as a defense would, of course, be on the infringer. However, an issue has arisen as to the burden of proof with respect to whether the copyright owner had authorized or acquiesced in the violation. The book manufacturers argue that this burden should be on the plaintiff, since evidence on the issue would be difficult for a defendant to obtain. Section 601 (d) (2) (A) of the 1965 bill follows this suggestion, but the provision has been vigorously attacked in behalf of authors' groups. Their argument is that, where infringement has occurred, an infringer should not be freed completely of liability simply because the copyright owner is unable to prove that the importation or distribution of a few copies was made without his authority; the full burden of proving the defense that the manufacturing clause has been violated with the copyright owner's assent belongs on the infringer. On the basis of this argument, we would favor deleting clause (A) of subsection (d) (2), and rewriting subsection (d) accordingly.
B. INFRINGING IMPORTATION
1. IN GENERAL
Section 602, which is entitled "Infringing Importation of Copies or Phonorecords," deal with importations in violation of a copyright owner's rights, and has nothing to do with the manufacturing requirements of section 601. As chapter 6 of the bill is structured, the restrictions on importation in violation of the manufacturing clause are contained in section 601, the restrictions on importation of infringing copies or phonorecords are contained in section 602, and the enforcement of the importation restrictions of both sections 601 and 602 are laid out in section 603.
Two separate situations are dealt with in section 602: (1) Importation of so-called "piratical" copies or phonorecords those made with out any authorization of the copyright owner-and (2) unauthorized importation of lawfully made copies or phonorecords. In general, the bill would make unauthorized importation of both kinds an act of infringement, but would permit the Bureau of Customs to prohibit importation only in the first situation.
Under section 602(a), “[i]mportation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work for the purpose of distribution to the public" would be an infringement of the "exclusive right to distribute copies or phonorecords." Thus, even before any public distribution of imported copies or phonorecords had taken place, an unauthorized importer whose purpose is to distribute them in the United States could be enjoined from distributing them and sued for damages. However, the section would not apply where the importer was “an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to copies or phonorecords intended to form a part of its library."
2. IMPORTATION OF "PIRATICAL" COPIES
As recommended in the 1961 Report, section 602(b) would retain the present prohibition againts the importation of copies or phonorecords whose making, in the words of the 1965 bill, "would have constituted an infringement of copyright if this title had been applicable." The prohibition would apply to all "piratical" copies or phonorecords. This would include not only those that were unlawful ́in the foreign country where they were made; it would also cover cases where, even though the making of the copies or phonorecords is lawful under the domestic law of that foreign country, their making would have constituted an infringement if the U.S. copyright law could have been applied. Take, for example, a work by an American author which is in the public domain in another country because it does not have copyright relations with the United States: nothing could be done to prevent the making and publication of an unauthorized edition in that country, but section 602 (b) would prohibit the importation of copies from that edition without the authority of the U.S. copyright owner.
3. IMPORTATION FOR INFRINGING DISTRIBUTION
In the second situation covered by section 602, the copies or phonorecords were lawfully made but their distribution in the United
States would violate the exclusive rights of the U.S. copyright owner. This would occur, for example, where the copyright owner had authorized the making of copies in a foreign country for distribution only in that country. The 1961 Report concluded that it would not be practicable for the Bureau of Customs to enforce a prohibition against importation in this situation, and section 602 (b) provides that, except where a violation of the manufacturing clause is involved, the Bureau has no authority to prevent importation in a case "where the copies or phonorecords were lawfully made." On the other hand, as noted above, unauthorized importation in this situation for the purpose of public distribution in the United States would be an infringement and could be enjoined.
4. NOTIFICATION TO COPYRIGHT OWNERS
The last sentence of section 602 (b) authorizes the Secretary of the Treasury to establish a procedure for notifying copyright owners of importations that may be infringing. This provision, which is patterned after a recent Treasury Regulation dealing with patents (29 Fed. Reg. 4720), would enable copyright owners to obtain the information needed to institute court proceedings, whether the copies or phonorecords in question are excluded or allowed entry.
C. ENFORCEMENT OF IMPORTATION PROHIBITIONS
Section 603, which would govern enforcement of the importation prohibitions of both sections 601 and 602, is similar to section 109 of the present statute. Subsection (a) would empower the Secretary of the Treasury and the Postmaster General to make regulations for this purpose, and subsection (c) deals with the disposition of excluded articles.
Section 603 (b), which pertains only to the prohibition against importation of "piratical" copies or phonorecords, contains provisions not found in the present statute. The Bureau of Customs is often in no position to decide questions of law or fact involved in determining whether copies or phonorecords are "piratical." To meet this problem, subsection (b) would permit the Customs Regulations to require "that the person seeking exclusion" either: (1) "obtain a court order enjoining importation of the articles," or (2) furnish proof supporting his claim, and post bond. The provisions with respect to furnishing proof and posting bond are similar to an existing Treasury Regulation (19 C.F.R. §§ 11.18-11.21) for enforcement of the prohibition against importation of "piratical copies" under the present law.