US Copyright Office States ‘Authorized Entities’ Exempt From Export Restrictions
In a filing based on WIPO SCCR questionnaire US Copyright Office provided the following response:
71. Does your national statute contain any limitations or exceptions that permit the importation and/or exportation of material accessible to persons with print disabilities or visually impaired persons, including the reading impaired?
Yes, under some conditions and situations.
Please describe: Under 17 U.S.C. § 602(a) importation and exportation are considered forms of “distribution” under U.S. copyright law. Section 602(a) gives the copyright holder control of such importation and exportation.
Section 602 itself contains a special set of exceptions (17 U.S.C. § 602(a)(3)(A)-(C)) which would permit individuals and authorized entities to engage in many acts of importation to meet the needs of persons with print disabilities.
More importantly, the exclusive right of distribution in 17 U.S.C. § 106(3) is subject to the limitations and exceptions contained in 17 U.S.C. §§ 107-122, including the exceptions for persons with print disabilities contained in 17 U.S.C. § 121. This means that acts of importation and exportation by “authorized entities” (as that term is defined in 17 U.S.C. § 121(d)(1)) that meet the conditions of § 121 will be exempt from § 602(a).
I have referenced this opinion on IP-Watch.org but it seems very few persons are aware of this bombshellassessment by the Copyright Office itself.
see (9DEC2010) IP-watch.org re: US Copyright Office response
Also, on 6 APR 2011, a blog with the heading
US provides misleading answer to WIPO questionnaire on export of accessible works under US law
was posted at KEIonline.org HERE I provided a Comment #1 and the following comment US Copyright Act 1976 Section 602(a)(2) which has now been posted online:
Sections 601-603 of the 1976 US Copyright Act as documented in the Legislative History (below) were mainly focused on protection of the domestic printing industry.
Section 602(a)(2), which neither in Ms. Cox’s blog above nor in the US Copyright Office WIPO Question 71 response is directly referenced, says that any exportation without exception is subject to Section 106 exclusive rights of the copyright owner.
602(a)(2) Importation or exportation of infringing items.—Importation into the United States OR EXPORTATION from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable,*** is an infringement of the exclusive right to distribute copies or phonorecords under section 106 ***, actionable under sections 501 and 506.
However the first paragraph of Section 121 states:
(a) Notwithstanding the provisions of section 106, it is NOT an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.
Ms. Cox does mention the (A)-(C) exceptions in 602(3) but those were the exceptions as they existed in the year 1976. The Section 121 ‘Chafee Amendment’ was not enacted until 1996. Had the ‘Chafee Amendment’ been in force in 1976, it most likely would have been included as (D) under the Section 602(a)(3) exceptions list.
Also note at comment #2 “Corollary: If You Can’t Sue Them, Get Them To Sue You”