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Infringing importation

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Overview Edit

The exclusive right to distribute copies or phonorecords includes the right to limit the importation of copies or phonorecords of a work acquired outside the United States into the United States without the authority of the copyright owner.[1] Such unauthorized importation, whether it be of pirated items (i.e., "copies or phonorecords made without any authorization of the copyright owner")[2] or "gray market" products (i.e., those copies or phonorecords legally produced overseas for foreign distribution, but not authorized for the U.S. market),[3] is an infringement of the distribution right.[4]

There are three exceptions to the importation right, which include a "suitcase" exception that exempts importation for the private use of the importer of one copy of a work at a time or of articles in the personal baggage of travelers entering the United States.[5]

The applicability of the importation provisions to the transmission of works into the United States via the Internet may be debated. Nevertheless, the importation right is an outgrowth of the distribution right, both of which refer to "copies or phonorecords." A data stream can contain a copyrighted work in the form of electronic impulses, but those impulses do not fall within the definition of "copies" or "phonorecords." Therefore, it may be argued that the transmission of a reproduction of a copyrighted work via the Internet does not constitute an "importation" under the current law.

ReferencesEdit

  1. 17 U.S.C. § 602(a).
  2. H.R. Rep. No. 1476, 94th Cong., 2d Sess. 55 (1976), at 169-70, reprinted in 1976 U.S.C.C.A.N. 5785 (hereinafter House Rpt.).
  3. Id. (Section 602 covers "unauthorized importation of copies or phonorecords that were lawfully made").
  4. See T.B. Harms Co. v. Jem Records, Inc., 655 F. Supp. 1575 (D.N.J. 1987)(full-text); Parfums Givenchy, Inc. v. C&C Beauty Sales, Inc., 832 F. Supp. 1378 (C.D. Cal. 1993)(full-text). Courts are divided as to whether the first sale doctrine limits the ability of copyright owners to enforce the importation rights (as it does with respect to the domestic distribution right). Compare BMG Music v. Perez, 952 F.2d 318, 319, 21 U.S.P.Q.2d (BNA) 1315 (9th Cir. 1991)(full-text) (first sale doctrine does not circumscribe importation rights under Section 602) with Sebastian Int'l, Inc. v. Consumer Contacts (Pty) Ltd., 847 F.2d 1093, 1097 (3d Cir. 1988)(full-text) (contra).
  5. See 17 U.S.C. §602(a) (subsection does not apply to "(1) importation 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; (2) importation, for the private use of the importer 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 with respect to copies or phonorecords forming part of such person's personal baggage; or (3) 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)"); House Rpt., at 170, reprinted in 1976 U.S.C.C.A.N. 5786.

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