Compendium II: Copyright Office Practices

Chapter 1200

 

MANUFACTURING PROVISIONS

 

Outline of Topics

 

1201 Background information.

 

1201.01 Works published before January 1, 1978.

1201.02 Works published after December 31, 1977.

1201.03 Extension of ad interim copyright to full term.

1201.04 Registration of U.S. edition optional in certain

cases.

1201.05 Manufacture of U.S. edition not required in

certain cases.

1201.06 Ad interim registration made but no U.S.

edition.

1201.07 No ad interim registration made.

 

1202 Basic requirements under current Act.

 

1202.01 Two-thousand copy limit.

 

1203 Works covered by the manufacturing requirements.

 

1204 Works not covered by the manufacturing require-

ments.

 

1205 Meaning of the word “preponderantly."

 

1205.01 Literary material of secondary importance.

1205.02 Literary material predominant.

1205.03 pictorial and literary material approximately

equal.

 

1206 Meaning of the word "substantial."

 

1207 Copies.

 

1208 Manufacture in the United States.

 

1209 Situations where the manufacturing requirements

are not applicable.

 

1209.01 Author not U.S. national or domiciliary.

1209.02 Author domiciled outside the United States for

one year.

1209.03 Employment for hire.

1209.04 Manufacture in Canada.

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Chapter 1200

Manufacturing Provisions

Outline of Topics -2 –

 

1210 Manufacturing processes covered.

 

1210.01 Copies printed from type.

1210.02 Lithographic or photoengraving process.

1210.03 Printing and binding.

 

1211 Manufacturing processes not covered.

 

1212 Entry under an Import Statement.

 

1212.01 Basic registration required.

1212.02 Import Statement may be issued for published

or unpublished work.

1212.03 Import Statement not required.

 

1213 Who may request an Import Statement.

 

1213.01 Limit of one basic Import Statement for each

work.

 

1214 Completion of Form IS.

 

1214.01 Identification of work.

1214.02 Person designated to receive Import Statement.

1214.03 Fee and contact.

1214.04 Certification.

1214.05 Registration number.

 

1215 New versions.

 

[1984]

 

Chapter 1200

 

MANUFACTURING PROVISIONS

 

1201 Background information. The provisions of this

chapter deal with the requirement, as a con-

dition 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 pro-

vision 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.

 

1200-1

 

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1200-2

 

1201 Background information. (cont’d)

 

1201.03 Extension of ad interim copyright to full

term. The Act of 1909, as amended, pro-

provided for the extension of ad interim copy-

rights 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 registra-

tion 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 full

term. 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. manufac-

tured edition, the Copyright Office will not

refuse registration.

 

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

 

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1200-3

 

1201 Background information. (cont'd)

 

1201.05 Manufacture of U.S. edition not required in certain cases. (cont’d)

 

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.

 

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1200-4

 

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 require-

ments. 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 manu-

facturing 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 "prepon-

derantly" of nondramatic literary material, if

such material exceeds the exempted material

 

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1200-5

 

1205 Meaning of the word "preponderantly." (cont'd)

in "importance." If a work consists prepon-

derantly of exempted material, e.g., pictures,

photographs, plays, or music, the manufac-

turing 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 prepon-

derantly 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 pic-

torial, graphic, or other nonliterary material

clearly forms less than one-half of a work in

which nondramatic literary material predomi-

nates, 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.

 

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1200-6

 

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 substan-

tial part of such material is neither a national

nor a domiciliary of the United States, the manu-

facturing requirements do not apply. 17 U.S.C.

601(b)(I). In this context, "substantial" has a

meaning that suggests real worth and importance and

would connote less than "preponderantly" (as used

in section 601(a) of the current Act) but more than

incidental or minimal.

 

Examples:

 

1) A two-page preface to a 100-page work presum-

ably would not be considered to be a "substan-

tial" 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 require-

ments of the Act.

 

1208 Manufacture in the United States. The United

States, when used in a geographical sense, com-

prises 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.

 

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1200-7

 

1209 Situations where the manufacturing requirements

are not applicable. The manufacturing require-

ments are not applicable in the following situa-

tions:

 

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 ques-

tioned, 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 importa-

tion 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.

 

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1200-8

 

1209 Situations where the manufacturing requirements

are not applicable.

 

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 I, 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 inter-

mediate 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.

 

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1200-9

 

1210 Manufacturing processes covered. (cont'd)

 

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 appro-

priate, importation of 2,000 copies is permitted,

irrespective of the time the work may have been

published, and irrespective of whether registra-

tion 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 addi-

tional 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, per-

mitting importation of 2,000 copies, if the

work were reprinted outside of the United

States or Canada.

 

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1200-10

 

1212 Entry under an Import Statement. (cont'd)

 

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 regis-

tration of a claim to copyright may be submitted

simultaneously with the Form IS, which is the

form for requesting issuance of an Import State-

ment.

 

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 Copy-

right Office will not issue the Import State-

ment. 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:

 

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1200-11

 

1213 Who may request an Import Statement. (cont'd)

 

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 pre-

pared), 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 Copy-

right 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).

 

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1200-12

 

1214 Completion of Form IS. (cont'd)

 

1214.03 Fee and contact. If the requester maintains

a Deposit Account in the Copyright Office,

the Account should be identified. Other-

wise, 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 issu-

ance 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 Copy-

right 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.

 

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1200-13

 

1215 New versions. (cont'd)

 

Examples: (cont'd)

 

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 State-

ment 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 copy-

right 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.

 

[END OF CHAPTER 1200]

 

[1984]