Enforcement of Copyrights and the Digital Millennium Copyright Act

<RULE> DEPARTMENT OF HOMELAND SECURITY <SUBAGY>U.S. Customs and Border Protection</SUBAGY> DEPARTMENT OF THE TREASURY <CFR>19 CFR Parts 113, 133, 148, 151, and 177</CFR> <DEPDOC>[CBP Dec. 24-03; USCBP-2019-0037]</DEPDOC> <RIN>RIN 1515-AE26</RIN> <SUBJECT>Enforcement of Copyrights and the Digital Millennium Copyright Act</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This document adopts as final, with some changes, proposed amendments to the U.S. Customs and Border Protection (CBP) regulations pertaining to importations of merchandise that violate or are suspected of violating the copyright laws, including the Digital Millennium Copyright Act (DMCA), in accordance with title III of the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA). The amendments set forth in this document clarify the definition of “piratical articles,” simplify the detention process involving goods suspected of violating the copyright laws, and prescribe new regulations enforcing the DMCA. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective on August 23, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Alaina van Horn, Chief, Intellectual Property Enforcement Branch, Regulations and Rulings, Office of Trade, U.S. Customs and Border Protection, (202) 325-0083, <E T="03">Alaina.VanHorn@cbp.dhs.gov</E> . </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background</FP> <FP SOURCE="FP1-2">A. Digital Millennium Copyright Act and the Trade Facilitation and Trade Enforcement Act of 2015</FP> <FP SOURCE="FP1-2">B. Notice of Proposed Rulemaking</FP> <FP SOURCE="FP1-2">C. Changes From the Proposed Rule for Applying to CBP for DMCA Protections</FP> <FP SOURCE="FP-2">II. Discussion of Comments</FP> <FP SOURCE="FP1-2">A. Bond Requirements for Right Holders To Obtain Samples From CBP</FP> <FP SOURCE="FP1-2">1. Type of Bond</FP> <FP SOURCE="FP1-2">2. Bond Conditions</FP> <FP SOURCE="FP1-2">3. Amount of the Bond</FP> <FP SOURCE="FP1-2">4. Bond Return Requirements</FP> <FP SOURCE="FP1-2">B. Definitions</FP> <FP SOURCE="FP1-2">1. Piratical Articles</FP> <FP SOURCE="FP1-2">2. Copyright Protection Measure</FP> <FP SOURCE="FP1-2">C. Pre-Seizure Disclosures to Right Holders</FP> <FP SOURCE="FP1-2">1. Limited Importation Information Disclosures</FP> <FP SOURCE="FP1-2">2. Unredacted Disclosures</FP> <FP SOURCE="FP1-2">3. Conditions of Unredacted Disclosures</FP> <FP SOURCE="FP1-2"> D. Notice of Detention and Importer Response Process </FP> <FP SOURCE="FP1-2">E. Post-Seizure Disclosures to Persons Injured by Violations of the DMCA</FP> <FP SOURCE="FP-2">III. Technical Corrections</FP> <FP SOURCE="FP-2">IV. Conclusion</FP> <FP SOURCE="FP-2">V. Statutory and Regulatory Authority</FP> <FP SOURCE="FP1-2">A. Executive Orders 12866 and 13563</FP> <FP SOURCE="FP1-2">B. Regulatory Flexibility Act</FP> <FP SOURCE="FP1-2">C. Paperwork Reduction Act</FP> <FP SOURCE="FP-2">Signing Authority</FP> </EXTRACT> <HD SOURCE="HD1">I. Background</HD> <HD SOURCE="HD2">A. Digital Millennium Copyright Act and the Trade Facilitation and Trade Enforcement Act of 2015</HD> Title III of the Trade Facilitation and Trade Enforcement Act of 2015 (Pub. L. 114-125; 130 Stat. 122; Section 628A of the Tariff Act of 1930 (19 U.S.C. 1628a), as amended) (TFTEA), made several significant changes to the U.S. Customs and Border Protection (CBP) procedures related to the importation of merchandise that violates or is suspected of violating intellectual property rights (IPR). Among the changes made by TFTEA are certain provisions regarding enforcement of the Digital Millennium Copyright Act (Pub. L. 105-304, 112 Stat. 2860, as amended by Pub. L. 106-113, 113 Stat. 1536, (codified at 17 U.S.C. 1201)) (DMCA). The DMCA prohibits the importation of devices used to circumvent the technological measures employed by certain copyright owners to protect their works (“copyright protection measures”). Section 303(a) of TFTEA amended section 596(c)(2) of the Tariff Act of 1930 (19 U.S.C. 1595a(c)(2)) by adding subparagraph (G) (19 U.S.C. 1595a(c)(2)(G)), which provides that CBP may seize merchandise containing a circumvention device violating the DMCA. Section 303(b) of TFTEA states that, when merchandise containing a circumvention device is seized pursuant to 19 U.S.C. 1595a(c)(2)(G), CBP must disclose to persons injured by that circumvention device information regarding the seized merchandise that is equivalent to the information disclosed to copyright owners when merchandise is seized for violation of the copyright laws. Section 302 of TFTEA amended the Tariff Act of 1930 by inserting a new section 628A (19 U.S.C. 1628a) authorizing CBP to make certain pre-seizure information disclosures to owners of properly recorded trademarks or copyrights that may comprise information otherwise protected by the Trade Secrets Act (18 U.S.C. 1905). CBP is authorized to disclose information when CBP determines that these disclosures would assist CBP in determining whether the imported merchandise suspected of violating the IPR laws actually violates 17 U.S.C. 602 (copyright), 17 U.S.C. 1201 (circumvention devices), or 19 U.S.C. 1526 (trademark), as long as the disclosures would not compromise an ongoing law enforcement investigation or national security. Specifically, section 302(a) of TFTEA (19 U.S.C. 1628a(a)) permits CBP to disclose to the right holder information that appears on the imported merchandise and its packaging and labels, including unredacted images of the merchandise and its packaging and labels. CBP also may, subject to any applicable bonding requirements, release unredacted samples of the merchandise to the right holder. <HD SOURCE="HD2">B. Notice of Proposed Rulemaking</HD> On October 16, 2019, the Enforcement of Copyrights and the Digital Millennium Copyright Act notice of proposed rulemaking (NPRM) was published in the <E T="04">Federal Register</E> (84 FR 55251). The NPRM proposed changes to 19 CFR part 133 necessary to implement the applicable provisions of title III of TFTEA, clarify the definition of “piratical articles,” provide for procedural safeguards to limit the release of information concerning non-violative shipments, simplify the detention process related to merchandise suspected of violating the copyright laws, and clarify the existing CBP procedures for post-seizure disclosures. <HD SOURCE="HD2">C. Changes From the Proposed Rule for Applying to CBP for DMCA Protections</HD> Section 133.47 provides for post-seizure disclosures to persons injured by a circumvention device, as defined in § 133.47(a)(4), who have successfully applied for and been approved by CBP for DMCA protections as provided in § 133.47(b)(2)(iii). Section 133.47(b)(2)(iii) announces the establishment of a list of persons approved by CBP to receive such post-seizure disclosures. In response to the public comments received, as discussed in more detail below, this final rule expands the ways that an eligible person, as defined in § 133.47(a)(3), may apply to CBP for these DMCA protections. Eligible persons may apply for such DMCA protections when this final rule becomes effective by attaching a letter requesting such disclosures to an application to record or renew a copyright. Owners of existing recorded copyrights may apply for these DMCA protections by submitting a letter requesting such disclosures to the Intellectual Property Enforcement Branch of Regulations and Rulings at <E T="03">HQIPRBranch@cbp.dhs.gov</E> . Pursuant to section 303(b)(2) of TFTEA, CBP will publish a notice, signed by the Executive Director, Regulations and Rulings, in the <E T="04">Federal Register</E> when the list is established. CBP will also publish the necessary revisions to the list in a notice signed by the Executive Director, Regulations and Rulings, in the <E T="04">Federal Register</E> on, at minimum, an annual basis, every September. <HD SOURCE="HD1">II. Discussion of Comments</HD> CBP received six public submissions in response to the NPRM. One submission was unresponsive and contained no specifics about the NPRM, copyrights, or IPR. The remaining five submissions supported the proposed rule's intent but sought clarifications, raised concerns, and/or made recommendations for improvements. The five submissions each contained multiple comments. The comments have been grouped together below based on the general topic. <HD SOURCE="HD2">A. Bond Requirements for Right Holders To Obtain Samples From CBP</HD> Prior to CBP's releasing a sample of imported merchandise pursuant to § 133.21, § 133.25, § 133.42, or § 133.47, for suspected infringement of a recorded mark or recorded copyright or suspected circumvention of a copyright protection measure, proposed 19 CFR 113.70 required the owner of the recorded mark or the recorded copyright to furnish a single transaction bond to CBP. The bond was required in the amount specified by CBP and was required to contain the bond conditions set forth in proposed § 113.70, including an agreement to only use the sample for the limited purpose of assisting CBP in enforcing IPR and an agreement to indemnify the importer or owner for any improper use of the sample. <HD SOURCE="HD3">1. Type of Bond</HD> <E T="03">Comment:</E> Two commenters requested that CBP also permit the right holder to furnish a continuous bond. The commenters stated that continuous bonds are more efficient in terms of simplified tracking and administration, more economical, ease the burden of underwriting, reduce the administrative burden on CBP, and further CBP's overall strategy to facilitate trade. O ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 118k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━