The Berman Amendment:
why you can buy and sell Cuban informational products in the US

Under the informational materials exemption of the Cuban Assets Control Regulations, 31 C.F.R. Part 515 (the "CACR"), prior authorization is not required for a variety of informational transactions between the US and Cuba. This means there is no need for a license from or even any communication with the US government, Treasury, OFAC, the State Department or any other branch prior to engaging in any informational transaction.

The "informational materials exemption, " also known as the "Berman amendment," is found in § 2502(a) of the Omnibus Trade and Competitiveness Act, Pub. L. No. 100-418, 102 Stat. 1107 (1988), and § 525 of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. No. 103-236, 108 Stat. 382 (1994). These amendments to § 5(b)(a) of the Trading with the Enemy Act, 50 USC. App. §§1-44 ("TWEA"), restrict the President’s authority to regulate, directly or indirectly, the importation or exportation of information or informational materials, regardless of the format or medium of transmission or whether the information or informational materials are for personal or commercial use. Sections 5 15.206 and 5 15.332 of the CACR, respectively, provide notice of this exemption and define the term "information and informational materials."

Section 5 15.545 of the CACR contains a general license covering transactions incident to such exportation and importation.

Informational materials has been deemed to include books, magazines, videos, music, electronic information, photos, paintings, sculptures, and other works of art. This was revised in 1994 to include electronic media.

The Amendment is named after representative Howard Berman, Democrat of California. It has been in force since 1988 and would require new legislation to overturn it, an unlikely prospect. No executive order can touch it.

Berman prohibits the creation of new works. Penalties here are severe, one case resulted in a 4 year prison sentence. The prohibition extends to subscriptions unless the subscription item is well established with an existing circulation.

However, this has changed as of April, 2016, when OFAC modified the Cuban Assets Control Regulations and allowed US persons and corporations to hire Cubans performing services, which can include the production of informational products:

Section 515.582: Authorized Importations Into the United States From Independent Cuban Entrepreneurs, also deals with services.

The State Department's Section 515.582 List, 4/22/2016 Provides the regulatory support for hiring people who produce informational products.    [Version español]

"In accordance with the policy changes announced by the President on December 17, 2014, to further engage and empower the Cuban people, Section 515.582 of the Cuban Assets Control Regulations (31 CFR Part 515 – the CACR) authorizes the importation into the United States of certain goods and services produced by independent Cuban entrepreneurs as determined by the State Department as set forth on the Section 515.582 List, below. [The entrepreneur cannot also work for any Cuban government entity.]

...The authorized services pursuant to 31 CFR 515.582 are services supplied by an independent Cuban entrepreneur in Cuba, as demonstrated by documentary evidence. Persons subject to U.S. jurisdiction engaging in import transactions involving services supplied by an independent Cuban entrepreneur pursuant to § 515.582 are required to obtain documentary evidence that demonstrates the entrepreneur’s independent status, such as a copy of a license to be self-employed issued by the Cuban government or, in the case of an entity, evidence that demonstrates that the entrepreneur is a private entity that is not owned or controlled by the Cuban government. Supply of services must comply with other applicable state and federal laws."

Cuban authors, programmers, filmmakers, artists, etc can retain rights to their work.