supporting CFR

§ 133.43

19 CFR Ch. I (4–1–11 Edition)

available, within 30 days, excluding
weekends and holidays, of the date of
the notice of seizure:
(1) The date of importation;
(2) The port of entry;
(3) A description of the merchandise;
(4) The quantity involved;
(5) The name and address of the manufacturer;
(6) The country of origin of the merchandise;
(7) The name and address of the exporter; and
(8) The name and address of the importer.
(e) Samples available to the copyright
owner. At any time following seizure of
the merchandise, Customs may provide
a sample of the suspect merchandise to
the owner of the copyright for examination, testing, or any other use in
pursuit of a related private civil remedy for copyright infringement. To obtain a sample under this section, the
copyright owner must furnish to Customs a bond in the form and amount
specified by the port director, conditioned to hold the United States, its officers and employees, and the importer
or owner of the imported article harmless from any loss or damage resulting
from the furnishing of a sample by Customs to the copyright owner. Customs
may demand the return of the sample
at any time. The owner must return
the sample to Customs upon demand or
at the conclusion of the examination,
testing, or other use in pursuit of a related private civil remedy for copyright infringement. In the event that
the sample is damaged, destroyed, or
lost while in the possession of the
copyright owner, the owner shall, in
lieu of return of the sample, certify to
Customs that: ‘‘The sample described as
[insert description] provided pursuant
to 19 CFR 133.42(e) was (damaged/destroyed/lost) during examination, testing, or other use.’’
(f) Referral to the U.S. Attorney. In the
event that phonorecords or copies of
motion pictures arrive in the U.S. bearing counterfeit labels, Customs officers
should consider referring the violation
to the U.S. Attorney, Department of
Justice, for possible criminal prosecution pursuant to the ‘‘Piracy and Counterfeiting Amendments Act of 1982’’ (18
U.S.C. 2318). This law provides a min-

imum fine of $25,000 or imprisonment
for not more than one year, or both, for
willful infringement of a copyright for
commercial advantage, and a maximum fine of $250,000 or imprisonment
for not more than 5 years, or both,
where trafficking in counterfeit labels
for phonorecords or copies of motion
pictures or other audiovisual works is
involved.
[T.D. 87–40, 52 FR 9475, Mar. 25, 1987; 52 FR
10668, Apr. 2, 1987, as amended by T.D. 97–30,
62 FR 19493, Apr. 22, 1997; T.D. 98–21, 63 FR
12000, Mar. 12, 1998]

§ 133.43 Procedure on suspicion of infringing copies.
(a) Notice to the importer. If the port
director has any reason to believe that
an imported article may be an infringing copy or phonorecord of a recorded
copyrighted work, he shall withhold
delivery, notify the importer of his action, and advise him that if the facts so
warrant he may file a statement denying that the article is in fact an infringing copy and alleging that the detention of the article will result in a
material depreciation of its value, or a
loss or damage to him. The port director also shall advise the importer that
in the absence of receipt within 30 days
of a denial by the importer that the article constitutes an infringing copy or
phonorecord, it shall be considered to
be such a copy and shall be subject to
seizure and forfeiture.
(b) Notice to copyright owner. If the
importer of suspected infringing copies
or phonorecords files a denial as provided in paragraph (a) of this section,
the port director shall furnish to the
copyright owner the following information, if available, within 30 days, excluding weekends and holidays, of the
receipt of the importer’s denial:
(1) The date of importation;
(2) The port of entry;
(3) A description of the merchandise;
(4) The quantity involved;
(5) The country of origin of the merchandise; and
(6) Notice that the imported article
will be released to the importer unless,
within 30 days from the date of the notice, the copyright owner files with the
port director:

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U.S. Customs and Border Protection, DHS; Treasury
(i) A written demand for the exclusion from entry of the detained imported article; and
(ii) A bond, in the form and amount
specified by the port director, conditioned to hold the importer or owner of
the imported article harmless from any
loss or damage resulting from Customs
detention in the event the Commissioner or his designee determines that
the article is not an infringing copy
prohibited importation under section
602 of the Copyright Act of 1976 (17
U.S.C. 602) (See part 113 of this chapter).
(c) Samples available to the copyright
owner. At any time following presentation of the merchandise for Customs
examination, but prior to seizure, Customs may provide a sample of the suspect merchandise to the owner of the
copyright for examination or testing to
assist in determining whether the article imported is a piratical copy. To obtain a sample under this section, the
copyright owner must furnish Customs
a bond in the form and amount specified by the port director, conditioned
to hold the United States, its officers
and employees, and the importer or
owner of the imported article harmless
from any loss or damage resulting from
the furnishing of a sample by Customs
to the copyright owner. Customs may
demand the return of the sample at
any time. The owner must return the
sample to Customs upon demand or at
the conclusion of the examination or
testing. In the event that the sample is
damaged, destroyed, or lost while in
the possession of the copyright owner,
the owner shall, in lieu of return of the
sample, certify to Customs that: ‘‘The
sample described as [insert description]
provided pursuant to 19 CFR 133.43(c)
was (damaged/destroyed/lost) during
examination or testing for copyright
infringement.
(d) Result of action or inaction by copyright owner. After notice to the copyright owner that delivery is being withheld for imported articles suspected of
being infringing copies of his recorded
copyrighted work, the port director
shall proceed in accordance with the
following procedures:
(1) Demand and bond; exchange of
briefs. If the copyright owner files a
written demand for exclusion of the

§ 133.43

suspected infringing copies together
with a proper bond, the port director
shall promptly notify the importer and
copyright owner that, during a specified time limited to not more than 30
days, they may submit any evidence,
legal briefs or other pertinent material
to substantiate the claim or denial of
infringement. The burden of proof shall
be upon the party claiming that the article is in fact an infringing copy.
(i) Exchange of briefs. Before timely
submitting the additional evidence,
legal briefs, or other pertinent material to Customs, pursuant to paragraph
(c)(1) of this section, in regard to the
disputed claim of infringement, the importer and the copyright owner shall
first provide each other with a copy of
all such information, including the importer’s denial of infringement and the
copyright owner’s demand for exclusion. The subsequent submission of this
information to Customs shall be accompanied by a written statement confirming that a copy has already been
provided to the opposing party. The
port director shall notify the importer
and the copyright owner that they
shall have additional time, not to exceed 30 days, in which to provide a response to the arguments submitted by
the opposing party, and that rebuttal
arguments, timely submitted, shall be
fully considered in the decision-making
process. During this rebuttal period
and before timely submitting the rebuttal arguments to Customs, the importer and the copyright owner shall
first provide each other with a copy of
all such material. The submission of
this rebuttal material to Customs shall
be accompanied by a written statement
confirming that a copy has been provided to the opposing party. The port
director shall not accept any additional material from the parties to substantiate the claim or denial of infringement after the final 30-day rebuttal period expires.
(ii) Decision. Upon receipt of rebuttal
arguments, or 30 days after notification if no rebuttal arguments are submitted, the port director shall forward
the entire file, together with a sample
of each style that is considered possibly infringing, to CBP Headquarters,
(Attention: Border Security and Trade
Compliance Division, Regulations and

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§ 133.44

19 CFR Ch. I (4–1–11 Edition)

Rulings, Office of International Trade),
for decision on the disputed claim of
infringement. The final decision on the
disputed claim of infringement shall be
forwarded to the port director who
shall send a copy thereof to the copyright owner as well as to the importer.
(2) Infringement disclaimed or unsupported. If the copyright owner disclaims
that the specified imported article is
an infringing copy of his recorded copyrighted work, or fails to present sufficient evidence or proof to substantiate
a claim of infringement, the port director shall release the detained shipment
to the importer and all further importations of the same article, by whomever imported, without further notice
to the copyright owner.
(3) Failure to file demand or bond. If
the copyright owner fails to file a written demand for exclusion and bond as
required by paragraph (b) of this section, the port director shall release the
detained articles to the importer and
notify the copyright owner of the release.
(4) Withdrawal of bond. Where the
copyright owner has posted a bond on
the grounds that the imported article
is infringing, the copyright owner may
not withdraw the bond until a decision
on the issue of infringement has been
reached.
(e) Alternative procedure: court action.
As an alternative to the administrative
procedure described in this section, the
copyright owner, whether or not he has
recorded his copyright with Customs,
may seek a court order enjoining importation of the article. To obtain Customs enforcement of an injunction, the
copyright owner shall submit a certified copy of the court order to the
Commissioner of Customs, Attention:
Office of the Chief Counsel, Washington, DC 20229. In addition, if the
copyright in question is not recorded
with Customs, the copyright owner
shall submit the $190 fee required by
§ 133.33(b) and, if the work is a three-dimensional or other work not readily
identifiable by title and author, 5 photographic or other likenesses repro-

duced on paper approximately 8″ × 101⁄2″
in size.
[T.D. 87–40, 52 FR 9475, Mar. 25, 1987, as
amended by T.D. 93–87, 58 FR 57740, Oct. 27,
1993; T.D. 98–21, 63 FR 12000, Mar. 12, 1998; 63
FR 15088, Mar. 30, 1998]

§ 133.44 Decision of disputed claim of
infringement.
(a) Claim of infringement sustained.
Upon determination by the Commissioner of Customs or his designee that
the detained article forwarded in accordance with § 133.43(c)(1) is an infringing copy, the port director shall
seize the imported article and institute
forfeiture proceedings in accordance
with part 162 of this chapter. The bond
of the copyright owner shall be returned.
(b) Denial of infringement sustained.
Upon determination by the Commissioner of Customs or his designee that
the detained article forwarded in accordance with § 133.43(c)(1) is not an infringing copy, the port director shall
release all detained merchandise and
transmit the copyright owner’s bond to
the importer.
[T.D. 87–40, 52 FR 9476, Mar. 25, 1987, as
amended by T.D. 97–30, 62 FR 19493, Apr. 22,
1997]

§ 133.45

[Reserved]

§ 133.46 Demand for redelivery of released articles.
If it is determined that articles
which have been released from Customs
custody are subject to the prohibitions
or restrictions of this subpart, the director of the port of entry shall
promptly make demand for redelivery
of the articles under the terms of the
bond on Customs Form 301, containing
the bond conditions set forth in § 113.62
of this chapter, in accordance with
§ 141.113 of this chapter. If the articles
are not redelivered to Customs custody, a claim for liquidated damages
shall be made in accordance with
§ 141.113(h) of this chapter.
[T.D. 72–266, 37 FR 20678, Oct. 3, 1972, as
amended by T.D. 73–175, 38 FR 17447, July 2,
1973; T.D. 74–227, 39 FR 32023, Sept. 4, 1974;
T.D. 84–213, 49 FR 41183, Oct. 19, 1984; T.D. 99–
64, 64 FR 43266, Aug. 10, 1999]

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