See reply to question 2 above.

In the case of copyrights, 17 U.S.C. § 504(c) provides statutory damages, which a copyright owner may elect instead of actual damages. For each work infringed, the minimum amount that can be awarded under the section, based on the circumstances, is US$200 and the maximum is US$100,000. As apparent from the amounts, judges have considerable discretion in determining the actual amount awarded and, therefore, would not likely consider their discretion unreasonably curtailed. In the case of patents, damages may not be less than a reasonable royalty for the use made of the invention by the infringer if the infringer had notice that the invention in question was patented. A substantial amount of discretion is involved in determining what would be a "reasonable royalty". See 35 U.S.C. §§ 284 and 287.

In the case of copyright, yes. Section 506(a) defines criminal copyright infringement as follows: "(a) Criminal infringement - Any person who infringes a copyright wilfully and for purposes of commercial advantage or private financial gain shall be punished as provided in section 2319 of title 18." Section 501(a) defines an "infringer of a copyright" as "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118, ... , or who imports copies or phonorecords into the United States in violation of section 602, ...". The relevant part of Section 602 states that "Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501, ...". Penalties for criminal copyright infringement are set forth in 18 U.S.C. § 2319.

Under US law, "proceedings leading to a decision on the merits of a case" referred to in Article 55 of the TRIPS Agreement are customarily administrative, but parties also can proceed judicially, either initially or after they have exhausted administrative remedies.

The right holder can obtain protection for trademarks and copyrights for a period of ten years, renewable for the duration of the underlying right, by following the Customs recordation process set out in §§ 133.01 to 133.15 (regarding trademarks) and 133.31 to 133.37 (regarding copyrights) of title 19 of the Code of Federal Regulations (C.F.R.).

The period will be set out in amendments to the Customs Service's regulations that are currently under review and pending approval.

Regulations governing such proceedings are found at 19 C.F.R. §§ 133.21 through 133.23a, which govern limitations on the importation of articles bearing recorded trademarks, notice to the parties, and detention and seizure of the articles. Proceedings governing articles that infringe copyrights are found at 19 C.F.R. § 133.43, which provides for notice to importer and the copyright owner and for an opportunity for them to exchange written materials stating their views on the question of piracy and rebutting the views of the other party before the articles are submitted to Customs headquarters for a decision .

We assume that the question refers to procedures involving infringement of rights other than trademarks and copyrights, since these procedures are the basis for earlier questions. Customs does not have independent authority to detain goods that infringe patents, industrial designs, or trade secrets. The US International Trade Commission has authority under section 337 of the Tariff Act of 1930 to order the Customs Service to deny entry to goods the USITC determines are infringing such rights.

Customs officials are responsible for making their decisions in good faith in accordance with the authority granted to them by statute. Decisions of the Customs Service are reviewable in court under Chapter 7 of title 5 of the United States Code. A reviewing court can decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. Section 706(1) authorizes the court to compel action that it determines has been unlawfully withheld.

See the response to question 6. Also, Customs can demand redelivery of goods violating trademarks or copyrights if appropriate, under 19 C.F.R. §§ 133.24 and 133.46 respectively.

Decisions of the Customs Service are reviewable in court under Chapter 7 of title 5 of the United States Code. The reviewing court can decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. Section 706(2) authorized the court to hold unlawful and set aside agency action, findings, and conclusions found to be "(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right", "(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court".

Currently, under 19 C.F.R. § 133.23a(c), notice is given to the trademark owner of the quantity of articles seized. The amendments to the regulations now being reviewed and pending approval, will provide for the disclosure of additional information. Under 19 C.F.R. § 133.43, notice is given to copyright owners that delivery of suspected infringing copies or phonorecords is being withheld a sample of the imported article is provided.

Customs regulations governing the treatment of confidential information are contained in Part 103 of title 19 of the Code of Federal Regulations. Customs employees can be subject to disciplinary action within the Service or held liable for the improper disclosure of confidential information under 18 U.S.C. § 1905 (the Trade Secrets Act), 40 U.S.C. § 759 (the Computer Security Act of 1987, and 5 U.S.C. § 552a (the Privacy Act).

Procedures governing seizures and detentions are described in 19 C.F.R. §§ 133.21 through 133.24 for trademarks and 19 C.F.R. §§ 133.42 through 133.47 for copyrights. The final provisions regarding forfeiture and assessment of liquidated damages in connection with both trademarks and copyrights are contained in 19 C.F.R. §§ 133.51 through 133.53.

Decisions made by field offices are subject to review by Customs' headquarters. Decisions of the Customs' headquarters are reviewable in the courts pursuant to 5 U.S.C. § 701 et seq.

Section 113.11 of title 19 of the Code of Federal Regulations authorizes port directors to determine the appropriate type of bond and the amount. The amount of the bond is based upon consideration of factors set out in 19 C.F.R. § 133.13.

The importer pays the cost of detention in accordance with 19 C.F.R. §§ 24.12 and 24.17(a)(9).

Counterfeit trademarked goods may not be reexported. The Anti-counterfeiting Consumer Protection Act of 1996 amended 17 U.S.C. 603(c) to prevent re-export of copyright-infringing goods.

The requirements will be set out in amendments to previously cited regulations. These amendments are currently under review and pending approval.

See the response to question 16.