RESTRICTEDWORLD TRADE
ORGANIZATIONWT/DSB/M/88
29 September 2000
(00-3982)
Dispute Settlement Body
11 September 2000
MINUTES OF MEETING
Held in the Centre William Rappard
on 11 September 2000
Chairman:  Mr. S. Harbinson (Hong Kong, China)
Prior to the adoption of the agenda, the item concerning "Korea – Measures Affecting Import
of Fresh, Chilled and Frozen Beef – Report of th e Panel" had been removed from the proposed agenda
as a result of Korea's decision to appeal the Report.
Subjects discussed: Page
1. United States - Section 110(5) of the US Copyright Act ........................................................1
(a) Implementation of the reco mmendations of the DSB.................................................................1
2. United States – Measures treating export restraints as subsidies.........................................2
(a) Request for the establishm ent of a panel by Canada ..................................................................2
1. United States - Section 110(5) of the US Copyright Act
(a) Implementation of the recommendations of the DSB
1. The Chairman recalled that in accordance with DSU provisions, the DSB was required to
keep under surveillance the implementation of recommendations and rulings of the DSB in order to
ensure effective resolution of disputes to the benefit of all Members.  In this respect, Article 21.3 of
the DSU provided that the Member concerned shall inform the DSB, within 30 days after the adoption
of the panel or Appellate Body report, of its intentions in respect of implementation of therecommendations and rulings of the DSB.  He also recalled that at its meeting on 27 July 2000, the
DSB had adopted the Panel Report on "United States  – Section 110(5) of the US Copyright Act".  He
noted that the 30-day period in this case had expired on 26 August 2000.  In a communication dated
24 August 2000 (WT/DS160/9), the United States had informed the DSB in writing of its intentions
with respect to implementation of the DSB's recommendations.
2. The representative of the United States said that the letter which had been sent to the
Chairman and which had been circulated to Members in document WT/DS160/9 was self-
explanatory.  The United States intended to implement the recommendations and rulings of the DSB
in a manner which respected its WTO obligations, and had begun to evaluate options for doing so.  As
noted in the document to which she had just referred, the United States needed a reasonable period oftime in which to implement the DSB's recommendations and rulings.  Accordingly, her country
proposed that such a reasonable period of time be 15 months.  The United States hoped that the DSB
could reach a consensus, at the present meeting, to accept the proposal in accordance with
Article 21.3(a) of the DSU.  However, if that was not possible, her country was ready to consult withWT/DSB/M/88
Page 2
the EC regarding a reasonable period of time.  Her delegation was not in a position to state what form
implementation would take.  She reiterated that the United States was reviewing its options and
intended to implement in a manner which respected its WTO obligations.
3. The representative of the European Communities said that the EC welcomed the US intention
to fully comply with its WTO obligations.  However, it could not accept the period of 15 months
proposed by the United States.  The EC believed that such a time-period was not reasonable and was
rather excessive.  The legislative change required was a simple one and could be completed in a
shorter period of time.  While the EC could not accept the period of 15 months, it was ready to consult
with the United States on this matter.
4. The representative of Australia said that while his country recognized that the negotiation of a
reasonable period of time was a matter for the EC and the US, or for determination by an arbitrator,
Australia had a strong interest in implementation in this case, given that Australian artists had been,and continued to be, deprived of their right to equitable remuneration for the commercial use of their
works in direct contravention of US obligations under the TRIPS Agreement.  Further, although
Australia recognized the right of the United States to determine how it would implement the
recommendation, implementation in this case should not be a complex matter requiring detailed
legislative or regulatory amendments.
5. The DSB took note of the statements and of the information provided by the United States
regarding its intention to implement the DSB's recommendations.  The DSB also noted that the
question of a reasonable period of time would be a matter for further consideration by the parties
under Article 21.3(b) of the DSU.
2. United States – Measures treating export restraints as subsidies
(a) Request for the establishment of a panel by Canada (WT/DS194/2)
6. The Chairman recalled that the DSB had considered this matter at its meeting on
4 August 2000 and had agreed to revert to it.  He  drew attention to the communication from Canada
contained in document WT/DS194/2.
7. The representative of Canada pointed out that his country's request for the establishment of a
panel was before the DSB for the second time.  The first request had been made at the DSB meeting
on 4 August 2000.  He regretted that at that meeting the United States had not allowed the panel to be
established.  Canada's claims concerning the treatment of export restraints set out in its panel request,
had been circulated to Members in document WT/DS194/2.  As stated previously, Canada viewed the
US measures as unjustified and inconsistent with the US obligations.
8. Consequently, in accordance with the relevant provisions of the DSU, the GATT 1994 and
the SCM Agreement, Canada affirmed its request for the establishment of a panel.  He recalled that atthe 4 August DSB meeting, the United States had expressed a number of concerns with Canada's
panel request.  At the present meeting, he did not wish to engage in a detailed rebuttal of all points
made by the United States, and would make only brief comments on the US statement.
9. Canada disagreed with the United States about its concerns with regard to the reference to
"US practice" in the identification of the "measures" at issue in the panel request and, specifically, theUS allegation that "practice" was not sufficiently identified, and that it had not been the subject of
consultations.  He refered to a letter that Canada had sent to the United States prior to the
consultations.  In that letter, dated 13 June 2000, Canada had given the United States express notice
that at the consultations, it wished to enquire as to sources of "US law and practice" that in addition to
the other identified measures, were relevant to US treatment of export restraints.  Moreover, theWT/DSB/M/88
Page 3
US Statement of Administrative Action (SAA) and the Preamble - two of the measures identified in
Canada's request for consultations - both contained clear references to US practice.  Canada was
concerned that this US practice was to apply the legal interpretation set out in the SAA and Preamble,
thus contravening the US WTO obligations.
10. He further stated that "practice" under the identified measures was very much a part of the
consultations, and the reference to "practice" in Canada's panel request could not in any way prejudice
the ability of the United States to defend itself.  Canada had clearly stated its claims and the legal
basis for those claims.  He reiterated Canada's request that a panel be established to examine this
matter.
11. The representative of the United States said that, for the reasons previously stated at the
4 August DSB meeting, her country wished to oppose the establishment of a panel on this matter.
However, the United States recognized that, in accordance with the DSU provisions, unless Canadaobjected, a panel would automatically be established.  She did not wish to repeat the US comments
made at the previous meeting, which remained valid.  She only wished to reiterate that Canada's panel
request failed to conform to the requirements of the DSU to the extent that it included a measure – an
unidentified "US practice" - that was neither included in Canada's consultation request nor discussed
at the consultations.  The United States reserved its rights with respect to Canada's failure to followthe DSU rules.  In addition, the use of the word "include" in its panel request suggested that Canada
might attempt to raise before a panel "measures" other than those identified in its panel request.  As
previously stated, under established WTO law, such an attempt would be impermissible, and therefore
the United States also reserved its rights with respect to this aspect of Canada's panel request.
12. The DSB took note of the statements, and agreed
 to establish a panel in accordance with the
provisions of Article 6 of the DSU with standard terms of reference.
13. Australia, European Communities  and India  reserved their third-party rights to participate in
the Panel's proceedings.
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