UNITED STATES - section 110(5) of us
copyright act
Request for Consultations by the European
Communities
and their Member States
The
following communication, dated 26 January 1999, from the Permanent Delegation
of the European Commission to the Permanent Mission of the United States and
the Chairman of the Dispute Settlement Body is circulated pursuant to Article
4.4 of the DSU.
_______________
On
behalf of the European Communities and their Member States, we hereby request
consultations with the United States of America pursuant to Article 4 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes and
Article 64:1 of the WTO Agreement on Trade-Related Intellectual Property Rights
(hereafter "TRIPs Agreement") regarding Section 110(5) of the United
States Copyright Act as amended by the "Fairness in Music Licensing
Act" enacted on 27 October 1998.
Section
110(5) of the US Copyright Act exempts, under certain conditions, the
communication by an establishment of a transmission or retransmission embodying
a performance or display of a nondramatic musical work intended to be received
by the general public from obtaining an authorisation to do so by the
rightholders of the music works. In
practice this means that Section 110(5) of the US Copyright Act permits, under
certain circumstances, the playing of radio and television music in public
places (such as bars, shops, restaurants etc.) without the payment of a royalty
fee.
The
European Communities and their Member States consider that this statute is not
in conformity with the United States of America's obligations under the TRIPs
Agreement, and more particularly its Article 9(1), under which WTO Members must
comply with Articles 1 to 21 of the Berne Convention for the Protection of
Literacy and Artistic Works (hereafter the "Berne Convention").
The
European Communities and their Member States base this consideration on the
fact that Section 110(5) of the US Copyright Act does not appear to be in
conformity with Article 11 bis(1) of the Berne Convention, as revised by the
Paris Act of 1971 (which grants the right holders of literary and artistic
works, including musical works, the exclusive right of authorising not only the
broadcasting and other wireless communication of their works, but also the
public communication of a broadcast of their works by loudspeaker or analogous
instrument), and with Article 11(1) of the same Convention (which grants the
rightholders of musical works the exclusive right of authorising the public
performance of their works, including such public performance by any means or
process, and any communication to the public of the performance of their
works).