CC-by Aurelia J. Schultz

WTO Dispute Report: United States – Section 110(5) of the US Copyright Act - WT/DS160/R Aurelia J. Schultz

Basic Information about the case:

Title: United States – Section 110(5) of the US Copyright Act (not nearly as much fun as “Tuna-

Dolphin”)

Parties: The United States and the European Communities and Member States

Claim: The EC claimed that 17 USC § 110(5), an amendment to the Copyright Act contained in

the Fairness in Music Licensing Act of 1998, violated the US’s obligations under Berne and thus

the US’s obligations under TRIPs via its incorporation of Berne.

3rd Parties: Australia, Brazil, Canada, Japan and Switzerland entered the case as 3rd parties

(basically on the side of the EC).

Panel Members: Ian Sheppard (Australian), Arumugamangalam V. Ganesan (Indian), Chair: Carmen Luz

Guarda (Chilean)

What the Parties agreed on: 17 USC § 110(5) does implicate two provisions of Berne, Art. 11(1)(ii) and

Art. 11bis (1)(iii).

What the Parties disagreed about: Pretty much everything else –

1. Whether or not TRIPs Art. 13 (allowing exceptions) can be used for rights in Berne

2. Whether the minor exceptions doctrine is accepted, still active or incorporated in TIRPs

3. Whether or not equitable remuneration needs to be granted when rights are limited

4. The meaning of “certain special case” in step 1 of Art. 13’s 3-step test

5. The scope of effects to be examined when analyzing the conflict with normal exploitation under

step 2 of Art. 13’s 3-step test

6. Whether to look at potential or actual prejudice when analyzing the reasonableness of

prejudice to the right holder under step 3 of Art. 13’s 3-step test

7. Whether or not exceptions need to serve a special purpose

8. And of course, whether or not § 110(5) passes the three steps of the test

The Panel did not address every issue raised by the parties. They completely brushed over any

domestic reasoning for why the US amended the section. They also dismissed the EC’s claim that

Berne Art. 11bis (2) should be used to analyze exceptions to the rights granted in 11bis.

The Outcome: The Panel found that § 110(5)(A), the homestyle exemption, did not violate Berne/TRIPs

but that § 110(5)(B), the business exemption, did violate Berne Art. 11(1)(ii) and Art. 11bis (1)(iii) and

thus TRIPs Art. 9.1.

The Arguments: The next 9 pages outline the parties’ arguments and the reasoning of the Panel.

WARNING: You may want to increase your view to about 150% for best reading experience. It can be

difficult to put nearly 100 pages into 10.

This might not be how it actually happened – ok, I’m pretty sure it didn’t happen this way, but you’ll

still get the general idea. And now… Adventures in Acronym Land: EC, US and the WTO DSB…

CC-by Aurelia J. Schultz

CC-by Aurelia J. Schultz

CC-by Aurelia J. Schultz

CC-by Aurelia J. Schultz

CC-by Aurelia J. Schultz

CC-by Aurelia J. Schultz

CC-by Aurelia J. Schultz

CC-by Aurelia J. Schultz

CC-by Aurelia J. Schultz

The End…?