CBP Final Rule Allows More Info Sharing on Copyright Violations With Rights Holders
Industry stakeholders will be watching whether new CBP amendments aimed at ensuring that U.S. imports follow copyright laws will be effective enough, according to a Houston attorney specializing in trademark and copyright litigation.
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Last week, CBP announced that it finalized regulatory changes on the import of merchandise that violates or is suspected of violating copyright laws, including the Digital Millennium Copyright Act (DMCA). The amendments clarify the definition of "piratical articles," simplify the detention process involving goods suspected of violating copyright laws and prescribe new regulations enforcing the DMCA, according to a June 24 Federal Register notice.
"The new rule reflects the CBP’s goal of protecting intellectual property through informed compliance and shared responsibility by attempting to allow copyright holders earlier insight into the enforcement process," Chante Westmoreland, attorney with Sheppard Mullin, told International Trade Today.
The amendments are effective Aug. 23. They were made in accordance with Title III of the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA).
Currently, if CBP suspects that a shipment might be violating copyright laws, then the agency can share information and samples of the suspect imported merchandise with a copyright holder, but the information, images and samples remain redacted.
But the new amendments enable CBP to disclose the unredacted information and share the unredacted images and samples of suspected imports with copyright holders.
"Although the rule does not go so far as to presume that CBP’s disclosure to the right holders would assist CBP in every instance (which would have likely been easier given CBP’s case load), it arguably still gives CBP enough discretion to loop in right holders for pre-seizure examination in most instances," Westmoreland said. "It will be interesting to see how often CBP chooses to exercise its discretion."
CBP has been mulling over the amendments for several years, asking in October 2019 for public input on how the agency should handle imported goods with suspected copyright violations (see 1910150034). The agency said then that it had been directed to consider amending regulations to account for some new pre-seizure disclosure requirements under the TFTEA. Section 628A of TFTEA authorizes CBP to disclose certain pre-seizure information to trademark and copyright owners, and that information may comprise items protected by the Trade Secrets Act.
The final rule also amends detention procedures for imported articles that are suspected of being pirated copies of a copyrighted work. The current detention procedures give an importer or rights holder up to 120 days to provide CBP with evidence showing a denial of infringement, but the new detention procedures require CBP to render an admissibility decision within 30 days from which the articles were presented to CBP for examination.