CBP Proposes Update to Regulations on Copyright Enforcement at Border

CBP is seeking public input on plans to update its regulations that would change how the agency handles imported goods with suspected copyright violations, CBP said in a notice. The proposal is a result of the Trade Facilitation and Trade Enforcement Act, which added some new pre-seizure disclosure requirements for possible violations of the Digital Millennium Copyright Act, it said. Such disclosures would only occur when the copyrights were previously recorded with CBP, it said. Comments are due Dec. 16.

CBP was directed under TFTEA "to disclose to persons injured by merchandise seized for violation of the DMCA information equivalent to the information disclosed to copyright owners when merchandise is seized for violation of the copyright laws," the agency said. In order to make those disclosures, CBP is creating a list of people eligible to receive the disclosures and will provide notice in the Federal Register when the list is ready and any time it is updated, CBP said. CBP's proposal also updates the regulations for "bond conditions to indemnify the United States for detention of copyrighted material."

There are some broad limits to what CBP is able to disclose to others due to the Trade Secrets Act, but TFTEA allowed CBP to make some new disclosures to IPR owners. "This proposed rule is intended to authorize, and in some cases require, CBP personnel to disclose, either at the time of detention of suspect merchandise or after seizure of violative merchandise, information that might reveal commercial or financial information otherwise protected by the Trade Secrets Act," the agency said. Such disclosure would allow rights holders to help CBP to determine whether there was in fact a copyright violation, it said.

The changes would also implement procedures related to DMCA violations. "Although the current CBP regulations do not specifically provide for the 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 the DMCA," it said. Among other things, "the DMCA prohibits the importation of devices used to circumvent the technological measures used by certain copyright owners to protect their works," and TFTEA authorizes CBP to seize merchandise with such circumvention devices, CBP said.

Under the proposal, "CBP will issue a notice of detention to the importer within five business days from the date of CBP’s decision to detain suspect merchandise" and allow the importer seven business days to provide information about the detained merchandise, it said. After that, CBP may disclose information to the recorded copyright owner to help determine whether there is a DMCA violation. If a violation is found to have occurred, CBP will begin forfeiture proceedings and "within 30 business days of the seizure, notify the person CBP determines is injured by the violation of the DMCA and will disclose certain information regarding the shipment to such person."

CBP also proposed to define "'piratical articles' as those that constitute unlawful (made without the authorization of the copyright owner) copies or phonorecords of a recorded copyright," it said. The agency also plans to expand the regulations for detaining and seizing piratical articles, it said. CBP previously proposed provisions in 2004 on piratical articles (see 04100710), but "CBP did not publish a final rule adopting the proposal," it said. "Due to the passage of time since the publication of the 2004 proposed rulemaking, CBP is proposing new amendments to part 133 of the CBP regulations."

(Federal Register 10/16/19)