1201Background information. 1201.01Works published before January 1, 1978. 1201.02Works published after December 31, 1977. 1201.03Extension of ad interim copyright to full term. 1201.04Registration of U.S. edition optional in certain cases. 1201.05Manufacture of U.S. edition not required in certain cases. 1201.06Ad interim registration made but no U.S. edition. 1201.07No ad interim registration made. 1202Basic requirements under current Act. 1202.01Two-thousand copy limit. 1203Works covered by the manufacturing requirements. 1204Works not covered by the manufacturing requirements. 1205Meaning of the word "preponderantly." 1205.01Literary material of secondary importance. 1205.02Literary material predominant. 1205.03Pictorial and literary material approximately equal. 1206Meaning of the word "substantial." 1207Copies. 1208Manufacture in the United States. 1209Situations where the manufacturing requirements are not applicable. 1209.01Author not U.S. national or domiciliary. 1209.02Author domiciled outside the United States for one year. 1209.03Employment for hire. 1209.04Manufacture in Canada.
1210Manufacturing processes covered. 1210.01Copies printed from type. 1210.02Lithographic or photoengraving process. 1210.02Printing and binding.
1212Entry under an Import statement. 1212.01Basic registration required. 1212.02Import Statement may be issued for published or unpublished work. 1212.03Import Statement not required.
1213Who may request an Import Statement. 1223.01Limit of one basic Import Statement for each work.
1214Completion of Form IS. 1214.01Identification of work. 1214.02Person designated to receive Import Statement. 1214.03Fee and contact. 1214.04Certification. 1214.05Registration number.
Background information. The provisions of this chapter deal with the requirement, as a condition of full copyright protection, that certain works be manufactured in the United States or Canada.
1201.01
Works published before January 1, 1978. In the case of works published before January 1, 1978, and subject to the manufacturing clause of title 17, U.S.C., as it existed on December 31, 1977, compliance with that provision constitutes a condition of copyright in the United States. Works first published before January 1, 1978, in violation of such requirements are in the public domain in the United States and cannot be registered under the current Act. However, any work in which ad interim copyright under that law subsisted, or was capable of being secured, on December 31, 1977, is accorded copyright protection for the term or terms provided by section 304 of the current Act, and registration may be made under section 408 of that Act. Where applicable, and upon request, an Import Statement will be issued for such works, permitting importation of up to 2,000 copies. See section 107 of the Transitional and Supplementary Provisions of the current Act. For fuller explanation of the practices governing ad interim copyright as well as the general practices under the manufacturing
clause of the Act of 1909, as amended, see Compendium I.
1201.02
Works published after December 31, 1977. In the case of works first published after December 31, 1977, the manufacturing requirements of section 601 of the current Act are applicable. Failure to comply with the manufacturing requirements may affect enjoyment of the exclusive rights of reproduction and distribution of copies, but such failure has no effect on any other exclusive rights.
1201.03
Extension of ad interim copyright to full term. The Act of 1909, as amended, provided for the extension of ad interim copyrights to full term if both of the following two conditions were met:
1)
a U.S. edition was produced in compliance with the manufacturing requirements and published with the required statutory copyright notice in the United States within a five-year period computed from the date of first publication abroad, and
2)
the claim in the U.S. edition was registered in the Copyright Office.,
If registration of the u.s. edition was sought after expiration of the five-year period, the Copyright Office would register the claim under the rule of doubt, if that u.s. edition had been manufactured and published within the five-year ad interim term. See Compendium I, Chapter 8, topic 8.4.6.II.b.
1201.04
Registration of U.S. edition optional in certain cases. For works manufactured and first published outside the United States after December 31, 1972, where ad interim registration was made and a U.S. edition, substantially
identical with that first published abroad, was manufactured and published with notice within the five-year term, a new registration is not required to extend the copyright to the fullterm. See section 107 of the Transitional and Supplementary Provisions of the current Act. If, however, the applicant desires to place on record the facts concerning the U.S. manufactured edition, the Copyright Office will not refuse regitration.
1201.05
Manufacture of U.S. edition not required in certain cases. Manufacture of a U.S. edition
is not required for works in which ad interim copyright was subsisting or was capable of being secured on December 31, 1977. See section 107, Transitional and Supplementary Provisions of the current Act. However, where a U.S. edition, substantially identical with that first published outside of the United States, was manufactured and published within the five-year term, the Copyright Office will not refuse registration.
1201.06
Ad interim registration made but no U.S. edition. With respect to works manufactured and first published abroad before December 31, 1972, for which ad interim registration was made but no U.S. edition was manufactured
and published within the five-year ad interim term, no new registration is possible.
1201.07
No ad interim registration made. Any English-language book or periodical published before July 1, 1977, which was subject to the manufacturing requirements of the Act of 1909, as amended, for which ad interim registration
was not made, cannot now be registered.
1202
Basic requirements under current Act. Copies of certain works consisting preponderantly of non dramatic literary material in the English language must be manufactured in the United States or Canada in order to satisfy the manufacturing requirements of the current Act. See 17 U.S.C. 601.
1202.01
Two-thousand copy limit. If such a work has been manufactured outside the United States or Canada, importation into the United States is limited to no more than 2,000 such copies upon issuance of an Import statement by the Copyright Office.
1203
Works covered by the manufacturing requirements. The manufacturing requirements apply to copies of certain nondramatic literary works in the English language. Literary works are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia. See 17 U.S.C. 101. A nondramatic literary work is any literary work other than a drama. A drama is a work that tells a story by means of dialog or action and represents or gives directions for representing all or a substantial portion of a story as actually occurring rather than merely being narrated or described. See also section 431 of Chapter 400: WORKS OF THE PERFORMING ARTS AND SOUND RECORDINGS.
1204
Works not covered by the manufacturing requirements. Dramatic, musical, pictorial, and graphic works, as well as works in languages other than English and works in the public domain in the United States, are among the works not included within the manufacturing requirements. Such works may thus be imported in unlimited quantities.
Examples:
1)
The acting version of a play, although in book form, is a dramatic work, and not subject to the manufacturing requirements.
2)
A painting reproduced by lithographic, mezzotint, or other process, is not a nondramatic literary work, and is thus not subject to the manufacturing requirements of the current Act.
1205
Meaning of the word "preponderantly."
The manufacturing requirements apply only to works which consist "preponderantly" of nondramatic literary materials in the English language. According to H.R. Report No. 94-1476, 94th Cong., 2d Sess. 167, a work consists "preponderantly" of nondramatic literary material, if such material exceeds the exempted material in "importance." If a work consists preponderantly of exempted material, e.g., pictures,photographs, plays, or music, the manufacturing requirements do not apply and copies may be imported in unlimited quantities. However, in Stonehill Communications, Inc. v. Martuge, 512 F. Supp. 349 (S.D.N.Y. 1981), the Court found the "importance" test and the instructions in the legislative history vague and difficult to apply. "In the absence of congressional or duly authorized guidelines," stated the Court, "the answer is an objective test -- in this instance, a 'mechanical' one." The Court held that in the absence of any other standards, "a book 'consists of pre-ponderantly nondramatic literary material... in the English language' when more than half of its surface area, exclusive of margins, consists of English-language text."
1205.01
Literary material of secondary importance. Where the literary material in a work consists merely of a foreword or preface, and captions, headings, or brief descriptions or explanations of pictorial, graphic, or other nonliterary material, the manufacturing requirements do not apply, and the Copyright Office will not issue an Import statement.
1205.02
Literary material predominant. Where the pictorial, graphic, or other nonliterary material clearly forms less than one-half of a work in which nondramatic literary material predominates, the manufacturing requirements apply to the textual portion of the work, and an Import Statement will be issued on request.
1205.03
Pictorial and literary material approximately equal. If the pictorial material and non dramatic literary material are approximately equal in importance or quantity, it is unclear whether the import restrictions apply, and an Import Statement will be issued on request.
1206
Meaning of the word "substantial." If, on the date importation is sought or public distribution in the United States is made, the author of any substantial part of such material is neither a national nor a domiciliary of the United States, the manufacturing requirements do not apply. 17 U.S.C. 60l(b)(1). In this context, "substantial" has a meaning that suggests real worth and importance and would connote less than "preponderently" (as used in section 60l(a) of the current Act) but more than incidental or minimal.
Examples:
1)
A two-page preface to a 100-page work presumably would not be considered to be a "substantial" portion of the work.
2)
A 25-page portion of a 90-page article would be considered "substantial."
1207
Copies. The manufacturing requirements of the law extend only to copies of a work. "Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 17 U.S.C. 101. Thus, phonorecords are outside the scope of the manufacturing requirements of the Act.
1208
Manufacture in the United States. The United States, when used in a geographical sense, comprises the several States, the District of Columbia and the Commonwealth of Puerto Rico, and the organized territories under the jurisdiction of the United States Government. 17 U.S.C. 101. The organized territories include Guam and the U.S. Virgin Islands. Manufacture in a territorial area under the jurisdiction of the United States which is not considered an "organized territory" is not regarded as manufacture in the United States. See section 1102.08 of Chapter 1100: ELIGIBILITY.
1209
Situations where the manufacturing requirements are not applicable. The manufacturing requirements are not applicable in the following situations:
1209.01
Author not U.S. national or domiciliary. If, on the date when importation is sought or public distribution in the United States is made, the author of any substantial part of the nondramatic literary material in the English language is neither a national nor a domiciliary of the United States, the manufacturing provisions do not apply. Where a work was previously registered naming as author a person who was at that time neither a national nor a domiciliary of the United States, a request for an Import Statement for such work will not ordinarily be questioned, since the nationality or domicile of the author may have changed between the time registration was made and the time importation is sought.
1209.02
Author domiciled outside the United States for one year. If the author is a national of the United States but he or she has been domiciled outside the United States for a continuous period of at least one year immediately preceding the date when importation is sought or public distribution in the United States is made, the manufacturing requirements are not applicable.
Examples:
1)
If the author of an English-language book is a U.S. citizen who has been domiciled in France for three years before requesting importation of a book manufactured in the Netherlands, unlimited importation is allowed.
2)
If, with regard to the work mentioned in the above example, the importation of a reprint edition is later requested after the author has changed his domicile to the United States, an Import Statement would be required.
1209.03
Employment for hire. If a substantial part of the nonexempt text of a work made for hire was prepared for an employer or other person who is not a national or domiciliary of the United States or a domestic corporation or enterprise, the manufacturing requirements do not apply.
Example:
If a U.S. citizen prepares an English language book as an employee for hire of a French citizen or French corporation,
unlimited importation would be allowed.
1209.04
Manufacture in Canada. If a copyrighted nondramatic literary work in the English language was printed or reprinted in Canada, copies could be imported into the United States in unlimited numbers on or after January 1, 1978, since Canadian manufacture satisfies the manufacturing requirements of the current Act.
1210
Manufacturing processes covered. Copies produced by one or more of the processes mentioned below are subject to the requirement of manufacture in the United States or Canada.
1210.01
Copies printed from type. If copies are printed directly from type that has been set, or directly
from plates made from such type, the setting of the type and the making of the plates must be performed in the United States or Canada.
1210.02
Lithographic or photoengraving process. If the making of plates by a lithographic or photoengraving process is a final or intermediate step preceding the printing of the copies, the plates must be made in the United States or Canada. The law permits the making of reproduction proofs ("repro proofs") abroad, provided that the plates from which the copies are printed are made in the United States or Canada and are not themselves imported. Similarly, the importation of computer tapes from which plates can be prepared is permitted.
1210.03
Printing and binding. If there is a final process of producing multiple copies and any binding of the copies, this must be performed in the United States or Canada.
1211
Manufacturing processes not covered. Photocopying is not considered a "printing process." Thus, if copies have been produced by photocopying, such reproduction is exempt from the manufacturing requirements. Copies produced in multiples by typewriter, by mimeograph, or by hand are also not covered by the manufacturing requirements. Copies reproduced in raised characters for the use of the blind are exempt from the manufacturing requirements. See 17 U.S.C. 601(b)(5).
1212
Entry under an Import Statement. In any case where issuance of an Import Statement is appropriate, importation of 2,000 copies is permitted, irrespective of the time the work may have been published, and irrespective of whether registration was made under the current Act or under the Act of 1909, as amended. Where the copyright owner of a work in which ad interim copyright was subsisting on December 31, 1977, has already imported the 1,500 copies allowed under the Act of 1909, a new Import Statement will be issued upon request, permitting importation of an additional 500 copies.
Examples
1)
For a work by a U.S. author, published and registered in 1970 as ad interim, where no U.S. edition was manufactured within five years as required by the Act of 1909, as amended, no new Import Statement can be issued because ad interim copyright was not subsisting on December 31, 1977.
2)
For a work manufactured in the United States and registered in Class A in 1975 for which no Import Statement has been issued, an Import Statement could be issued on request, permitting importation of 2,000 copies, if the work were reprinted outside of the United States or Canada.
1212.01
Basic registration required. There must be a basic registration in the Copyright Office for the work before an Import Statement will be issued. However, the application for registration of a claim to copyright may be submitted simultaneously with the Form IS, which is the form for requesting issuance of an Import Statement.
1212.02
Import Statement may be issued for published or unpublished work. The Copyright Office will issue an Import Statement for an unpublished work on request. Where it appears that the work to be imported will be substantially different from the unpublished version in which a claim was or is being registered, the Copyright Office may point out that the Import Statement applies only to the particular work that is registered. See also section 1215 below.
1212.03
Import Statement not required. If an Import Statement is requested, but is clearly not required (e.g., where the nontextual matter predominates, or the work is in a language other than English, or the work is in the public domain in the United States), the Copyright Office will not issue the Import Statement. 37 C.F.R. 201.8(a)(4). The Copyright Office will promptly so notify the requester since copies may be in transit or at a port of entry. However, in the case of a dispute between the U.S. Customs Service and the copy right owner concerning whether unlimited importation of copies is permissible under 17 U.S.C. 601, the Copyright Office will, in proper cases and upon request, issue the Import Statement. See 37 C.F.R. 201.8(a)(5).
1213
Who may request an Import Statement. An Import Statement may be requested by the copyright owner or by the duly authorized agent of such owner. The copyright owner for this purpose may be:
1)
The author of the work (including, in the case of a work made for hire, the employer or other person for whom the work was prepared), or
2)
A copyright claimant, other than the author,identified in the registration for the work, or
3)
A person or organization that has obtained ownership of one or more exclusive rights, initially owned by the author, including the exclusive right to import copies of the work into the United States.
See 37 C.F.R. 201.8(b)(2); see also section 1214.04 below.
1213.01
Limit of one basic Import Statement for each work. As a general rule, only one basic Import Statement will be issued for the same work. Exceptional cases will be dealt with on their particular merits.
1214
Completion of Form IS. There are a number of spaces on the Form IS to be completed by the requester. If registration has already been made for the work, the information provided should agree with the information in the certificate of registration; if registration is being made simultaneously with the request for an Import Statement, the information given should agree with the information in the application for registration. The spaces to be completed are as follows.
1214.01
Identification of work. The title of the work, name{s) of author(s), and name(s) of copyright claimant(s) should be given.
1214.02
Person designated to receive Import Statement. The full name and complete mailing address of the person or organization to whom the Copyright Office will issue the Import Statement should be given, even if the same name and address appear elsewhere on the form. The law provides that the Import Statement shall be issued to the copyright owner or to a person designated by such owner. See 17 U.S.C. 601(b)(2).
1214.03
Fee and contact. If the requester maintains a Deposit Account in the Copyright Office, the Account should be identified. Otherwise, the required fee should be enclosed with the request. The name, address, and telephone number of a person to contact about the request should also be provided on the form.
1214.04
Certification. The Form IS must include the handwritten signature of a person who certifies that he or she is either the copyright owner as shown in the records of the Copyright Office, or the duly authorized agent of the copyright owner, and that he or she authorizes the issuance of an Import Statement to the designated person.
1214.05
Registration number. If the work has already been registered, the applicant should give the registration number in the appropriate space on the Form IS. If registration is being applied for simultaneously with the request for an Import Statement, the Copyright Office will add the registration number to the Form IS.
1215
New versions. If the version to be imported is substantially different from the version in which a claim to copyright was registered, a claim to copyright in the version to be imported must also be registered before an Import Statement covering that version can be issued.
Examples:
1)
Where an Import Statement is requested for the fifth revised edition of a textbook, and the registration number given on the Form IS is found to be that for the second revised edition, the Copyright Office will inform the requester that no Import Statement can be issued unless registration is made for the fifth revised edition.
2)
If a novel originally manufactured, published, and registered in the united States before 1978 is reprinted outside the United States or Canada with a new pictorial cover, no new registration is required for an Import Statement to be issued. The test for issuance of the Import Statement is whether there is a subsisting claim in the nondramatic literary material, and whether the claim to copyright in that material has been registered.
3)
Where a U.S. author translates into English a Russian-language novel and importation is sought for the translation, a claim to copyright must be registered in the translation in order for an Import Statement to be issued. Registration for the Russian-language work is not a necessary condition for the issuance of the Import Statement, nor is it required that the work in Russian be protectible in the United States.
