WT/DS362/R 
 Page D-1 
 
 
  ANNEX D 
 
MISCELLANEOUS 
 
 
CONTENTS PAGE 
D-1 Request for the Establishment of the Panel by the United States D-2 
D-2 Letter dated 21 April 2008 from the Panel to the International Bureau 
of WIPO D-8 
D-3 Reply from the International Bur eau of WIPO dated 6 June 2008   D-9 
 
   WT/DS362/R 
Page D-2  
 
 
 ANNEX D – 1 
REQUEST FOR THE ESTABLISHMENT OF THE PANEL  
BY THE UNITED STATES 
 
 
WORLD TRADE  
ORGANIZATION  WT/DS362/7 
21 August 2007 
 (07-3501) 
 Original:   English 
 
 
CHINA - MEASURES AFFECTING THE PROTECTION AND ENFORCEMENT 
OF INTELLECTUAL PROPERTY RIGHTS 
 
Request for the Establishment of  a Panel by the United States  
 
  The following communication, dated 13 August 2007, from the delegation of the United States to the Chairman of the Dispute Settlement  Body, is circulated pursuant to Article 6.2 of 
the DSU.  
_______________ 
 
  On 10 April 2007, the United States requested consultations with the Government of the 
People's Republic of China pursuant to Articles 1 and 4 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (" DSU") and Article 64 of the Agreement on Trade-
Related Aspects of Intellectual Property Rights ("TR IPS Agreement") (to the extent that Article 64 
corresponds to Article XXII of the General Agreemen t on Tariffs and Trade 1994) with respect to 
certain measures pertaining to the protection and en forcement of intellectual property rights in China.
1  
The United States held consultations with China on 7-8 June 2007.  Those consultations provided 
some helpful clarifications but unfortunately did not resolve the dispute. 
I. Thresholds for criminal procedures and penalties 
 The United States considers that China has not provided for criminal procedures and penalties 
to be applied in cases of willful trademark counterfeiting or copyright piracy on a commercial scale that fail to meet certain thresholds.  China h as established these thresholds through the following 
measures:   
(1) the Criminal Law of the People's Republic of  China (adopted at the Second Session of the 
Fifth National People's Congress on 1 July 1979 a nd revised at the Fifth Session of the Eighth 
National People's Congress on 14 March 1997) ("Cr iminal Law"), in particular Articles 213, 
214, 215, 217, 218, and 220;  
                                                     
 
1 WT/DS362/1.  WT/DS362/R 
 Page D-3 
 
 
 
 (2) the Interpretation by the Supreme People's C ourt and the Supreme People's Procuratorate on 
Several Issues of Concrete Application of Law in Handling Criminal Cases of Infringing 
Intellectual Property (adopted at the 1331st Session of the Judicial Committee of the Supreme 
People's Court on 2 November 2004 and the 28th Session of the Tenth Procuratorial 
Committee of the Supreme People's Procurator ate on 11 November 2004 and to be effective 
as of 22 December 2004) ("the December 2004 Judicial Interpretation");  and  
(3) the Interpretation by the Supreme People's C ourt and the Supreme People's Procuratorate on 
Several Issues of Concrete Application of Law in Handling Criminal Cases of Infringing 
Intellectual Property (II) (adopted on 4 April 2007, at the 1422nd Session of the Judicial 
Committee of the Supreme People's Court and the 75th Session of the Tenth Procuratorial 
Committee of the Supreme People's Procuratorate, and to be effective on 5 April 2007) ("the 
April 2007 Judicial Interpretation"); 
as well as any amendments, related measures,2 or implementing measures. 
 
Articles 213, 214, and 215 of the Criminal Law describe certain acts of trademark 
counterfeiting that may be subject to criminal pr ocedures and penalties.  However, under Article 213, 
criminal procedures and penalties are available only "if the circumstances are serious" or "if the circumstances are especi ally serious."  Under Article 214, criminal procedures and penalties are 
available only "if the amount of sales [of commoditi es bearing counterfeit registered trademarks] is 
relatively large" or "if the amount of sales is huge ."  Under Article 215, criminal procedures and 
penalties are available only "if the circumstances ar e serious" or "if the circumstances are especially 
serious." 
 
Articles 217 and 218 of the Criminal  Law describe certain acts of copyright piracy that may 
be subject to criminal procedur es and penalties.  However, under Ar ticle 217, criminal procedures and 
penalties are available only "if the amount of illegal ga ins is relatively large, or if there are other 
serious circumstances" or "if the amount of illegal gains is huge or if there are other especially serious 
circumstances."  Under Article 218, criminal pr ocedures and penalties are available only "if the 
amount of illegal gains is huge."  
Article 220 of the Criminal Law provides for the availability of procedures and penalties 
when the crimes described in Articles 213 through 219 are committed by a "unit," as opposed to by 
natural persons. 
 The Criminal Law does not contain definitions for the thresholds "serious," "especially 
serious," "relatively large," and "huge" as used in  the above-referenced articles.  However, the 
December 2004 Judicial Interpretation and the Ap ril 2007 Judicial Interpretation do contain such 
definitions, which use thresholds that are stated  as minimum "illegal business volumes" (stated in 
terms of minimum values of products produced, stor ed, transported or sold), minimum "illegal gains", 
or minimum numbers of "illegal copies".  
Acts of trademark counterfeiting and copyright piracy that fail to meet the statutory and 
judicial interpretation thresholds described above thus are not subject to Articles 213, 214, 215, 217, 
218, and 220 of the Criminal Law.   
                                                     
 
2 Such other related measures include the Explanation on Certain Questions Related to the Concrete 
Application of Law in Hearing Cases of Crimes of Illegal Publication, Fa Se (1998) No. 30 (adopted by the 
Adjudication Committee of the Supr eme People's Court at its 1032nd meeting on 11 December 1998, effective as 
of 23 December 1998) and the Prosecu tion Guidelines for Criminal Case s Jointly Issued by the Supreme 
People's Procuratorate and the Ministry of Public Safety (18 April 2001). WT/DS362/R 
Page D-4  
 
 
  
Consequently, it appears that, as a result of the thresholds described above, there are cases of 
willful trademark counterfeiting and copyright pir acy on a commercial scale in which China has not 
provided for criminal procedures and penalties to be a pplied.  It also appears that, as a result of the 
thresholds described above, there are cases of willf ul trademark counterfeiting and copyright piracy 
on a commercial scale for which the remedies of im prisonment and/or monetary fine sufficient to 
provide a deterrent are not available in China.  Furthermore, it appears that, as a result of the 
thresholds described above, China fa ils to ensure that enforcement pr ocedures as specified in Part III 
of the TRIPS Agreement are available under its law so  as to permit effective action against any act of 
willful trademark counterfeiting or copyright piracy on a commercial scale.  
China's measures thus appear to be inconsiste nt with China's obligations under Articles 61 
and 41.1 of the TRIPS Agreement.  
II. Disposal of goods confiscated by Customs Authorities that infringe Intellectual Property 
Rights 
The United States considers that China's meas ures for disposing of confiscated goods that 
infringe intellectual property rights appear to be  inconsistent with Chin a's obligations under the 
TRIPS Agreement.  In this regard, the measures at issue are:  (1) the Regulations of the People's Republic of China for Customs Protection of Intellectual 
Property Rights (adopted at the 30
th Ordinary Meeting of the State Council on 
26 November 2003, published by the State Council on 2 December 2003, and effective from 
1 March 2004) ("Customs IPR Regulations") , in particular Chapter 4 thereof;  
 (2) the Implementing Measures of Customs of the Pe ople's Republic of China for the Regulations 
of the People's Republic of China on Custom s Protection of Intellectual Property Rights 
(adopted at an Administration Affairs Meeting of the General Administration of Customs on 
22 April 2004, issued by the General Administration of Customs with Order No. 114 on 25 May 2004, and effective from 1 July 2004) ("Customs IPR Implementing Measures"), in particular Chapter 5 thereof;  and 
 (3) General Administration of Customs Announcement No. 16 (2 April 2007); 
 
as well as any amendments, related measures,
3 or implementing measures. 
 
Article 27 of the Customs IPR Regulations a nd Article 30 of the Customs IPR Implementing 
Measures set forth a hierarchy of requirements for the disposal of goods that infringe intellectual 
property rights and that are confiscated by Chinese customs authorities.  Under that hierarchy, the 
Chinese customs authorities are required to give prior ity to disposal options that allow such goods to 
enter the channels of commerc e (for instance, through auctioning the goods after removing their 
infringing features).  Only if the infringing features cannot be removed must the goods be destroyed.  
The release of infringing goods into the channe ls of commerce under the circumstances set 
forth in the measures at issue appears not to constit ute destruction or disposal of infringing goods in 
accordance with the principles set out in Article 46 of the TRIPS Agreement.  Consequently, the 
requirement in the measures at i ssue that Chinese customs authorities release infringing goods into the 
                                                     
 
3 Such other related measures include the Law of the People's Republic of China on Administrative 
Penalty (adopted at the Fourth Session of the Eighth National People's Congress on 17 March 1996, promulgated by Order No. 63 of the President of the People's Republic of China on 17 March 1996, and 
effective as of 1 October 1996) and in particular Article 53 thereof.  WT/DS362/R 
 Page D-5 
 
 
 
 channels of commerce under the circumstances set forth in those measures appears to mean that 
Chinese customs authorities lack the authority to or der destruction or disposal of infringing goods in 
accordance with the principles set out in Article 46 of the TRIPS Agreement.  The measures at issue 
therefore appear to be inconsistent with China's obligations under Article 59 of the TRIPS Agreement. 
 III. Denial of copyright and related rights protection and enforcement to works that have 
not been authorized for publication or distribution within China 
The United States considers that China appears to be acting inconsistently  with its obligations 
under the TRIPS Agreement by denying the protection of its Copyright Law to creative works of authorship (and, to the extent Article 4 of the Copyright Law applies to them, sound recordings and 
performances) that have not been authorized for,  or are otherwise prohibited from, publication or 
distribution within China.  In this  regard, the measures at issue are: 
 (1) the Copyright Law,
4 in particular Article 4; 
 
(2) the Criminal Law; the Regulations on the Administration of Publishing Industry; the 
Regulations on the Administration of Broadcasti ng; the Regulations on the Administration of 
Audiovisual Products; the Regulations on the Ad ministration of Films; and the Regulations 
on the Administration of Telecommunication;5 
 (3) the Regulations on Administration of the Films Industry
6; 
 
(4) the Administrative Regulations on Audiovisual Products7; 
 (5) the Administrative Regulation on Publishing
8; 
 
(6) the Administrative Regulations on Electronic Publications9; 
 (7) the Measures for the Administration of Import of Audio and Video Products
10; 
 (8) the Procedures for Examination and Approval for Publishing Finished Electronic Publication 
Items Licensed by a Foreign Copyright Owner
11; 
                                                      
4 Adopted at the 15th Session of the Standing Committee of the Seventh National People's Congress on 
7 September 1990, and amended according to the Decision on the Revision of the Copyright Law of the People's 
Republic of China, adopted at the 24th Session of the Standing Committee of the Ninth National People's 
Congress on 27 October 2001.  See Main Dedicated Intellectual Property Laws and Regulations Notified under 
Article 63.2 of the Agreement: China , IP/N/1/CHN/C/1, circulated 8 July 2002. 
5 As noted by China in reply to a question in Review of Legislation: China , IP/Q/CHN/1, circulated 10 
December 2002, section V.A.3. 
6 State Council Order No. 342, adopted at the 50th executive meeting of the State Council on 
12 December 2001, promulgate d on 25 December 2001. 
7 State Council Order No. 341, adopted at the 50th executive meeting of the State Council on 
12 December 2001, promulgate d on 25 December 2001. 
8 State Council Order No. 343, adopted at the 50th executive meeting of the State Council on 
12 December 2001, promulgate d on 25 December 2001. 
9 Order No. 11 of the General Admi nistration of Press and Pub lication (30 December 1997). 
10 Decree No. 23 of the Ministry of Culture and the General Administration of Customs 
(17 April 2002). 
11 General Administration of Press and Publication (27 December 2005) (Basis of Establishment:  
Decision on Establishing Administrative Licensing for Items Necessary to be Maintained for Administrative 
Examination and Approval by the State Council [State Council Order No. 412]). WT/DS362/R 
Page D-6  
 
 
  
(9) the Procedures for Examination and Approva l of Importation of Finished Electronic 
Publication Items by Electronic Publication Importation Entities
12; 
 (10) the Procedures for Recording of Imported Publications
13; 
(11) the Interim Regulations on Internet Culture Administration14; and 
 (12) the Several Opinions on the Developm ent and Regulation of Network Music
15; 
 as well as any amendments, related measures, or implementing measures. 
 
Article 5(1) of the Berne Convention for the Protection of Literary and Artistic Works (1971)  
(the "Berne Convention") provides that foreign aut hors of protected works shall enjoy all the rights 
granted to domestic authors, as well as all the rights specially granted by the Berne Convention.
16  
Moreover, these rights may not be made subject to any formality (Berne Convention Article 5(2)).  
Article 9.1 of the TRIPS Agreement requires all WTO Members, inter alia , to comply with Articles 1 
through 21 of the Berne Convention.17 
 
China's Copyright Law provides the legal basis for copyright protection within China of the 
works of Chinese and foreign authors, and it provides an array of rights to such authors (e.g ., rights of 
reproduction, translation, and adaptation).  In add ition, the Copyright Law provides specific statutory 
protections to performers, producers of sound record ings, and broadcasting or ganizations.  However, 
the first sentence of Article 4 of the Copyright Law provides as follows:  "Works the publication or 
distribution of which is prohibited by law shall not be  protected by this Law."  Therefore, authors of 
works whose publication or distribution in China is  prohibited (such as those works whose publication 
or distribution has not been authorized in China18) appear not to enjoy the protection specially granted 
by the Berne Convention in respect  of those works (and, it appears, may never enjoy such protection 
if the work is not authorized, or is not authorized for distribution or publication in the form as submitted for review).  By causing this denial of co pyright protection, Article 4 of the Copyright Law 
appears to be inconsistent with China's obligations  under Article 9.1 of the TRIPS Agreement.  In 
addition, the copyright rights of authors of work s whose publication or distribution is required to 
undergo pre-publication or pre-distribution review appear to be subject to the formality of successful 
conclusion of such review.  By subjecting copyrigh t protection to this formality, Article 4 of the 
Copyright Law appears to be inconsistent with China's obligations under Article 9.1 of the TRIPS 
Agreement.  
 
                                                     
 
12 General Administration of Press and Publication (27 December 2005) (Basis of Establishment:  
Decision on Establishing Administrative Licensing for Items Necessary to be Maintained for Administrative Examination and Approval by the State Council [State Council Order No. 412]). 
13 General Administration of Press and Publication (27 December 2005) (Basis of Establishment: 
Article 45 of the Administration Regulations on Publication [State Council Order No. 343]). 
14 Promulgated in Order No. 27 of the Ministry of Culture (10 May 2003), amended by Order No. 32 of 
the Ministry of Culture (1 July 2004). 
15 Ministry of Culture (20 November 2006). 
16 The rights specially granted by the Berne Convention include, inter alia , the right of reproduction 
(Berne Convention Article 9(1)), the right of adaptation (Berne Convention Article 12), and the right of translation (Berne Convention Article 8). 
17 However, WTO Members do not have rights or oblig ations under the TRIPS Ag reement in respect of 
the rights conferred under Article 6 bis of the Berne Convention or of the rights derived therefrom. 
18 See, e.g., the Regulations on Administration of the Films Industry, articles 24 and 42, and the 
Administrative Regulations on Electronic Publications, articles 58-59 and 72.  WT/DS362/R 
 Page D-7 
 
 
 
 In addition, Article 14 of the TRIPS Agre ement requires China to give performers, inter alia , 
the possibility of preventing certain acts, and to  give producers of phonograms (sound recordings) the 
right to authorize or prohibit the direct or indirect  reproduction of their sound r ecordings (collectively, 
the "related rights").  To the extent that Article  4 of the Copyright Law also denies protection of 
related rights with respect to performances (or their fixations) or sound recordings, the publication or 
distribution of which has not been authorized or is otherwise prohibited in China, Article 4 of the 
Copyright Law appears to be inconsistent with China's obligations under Article 14 of the TRIPS 
Agreement.   
Furthermore, it appears that the measures at issue establish different pre-distribution and 
pre-authorization review processes for Chinese nationa ls' works, performances (or their fixations) and 
sound recordings than for foreign nationals' wo rks, performances (or their fixations) and sound 
recordings.
19  These different processes, taken together with Article 4 of the Copyright Law, appear to 
result in earlier and otherwise more favorable pr otection and enforcement of copyright rights for 
Chinese authors' works than for foreign authors' works.  Further, to the extent Article 4 applies with 
respect to related rights, these different processes, ta ken together with Article 4 of the Copyright Law, 
appear to result in earlier and otherwise more favor able protection and enforcement of related rights 
for Chinese performers' performan ces (or their fixations) and Chinese producers' sound recordings 
than for foreign performers' performances (or their fixations) and foreign pro ducers' sound recordings.  
The measures at issue therefore appear to be incons istent with China's obligations under Article 3.1 of 
the TRIPS Agreement, which provides that, subjec t to certain exceptions and qualifications, each 
Member shall accord to the nationals of other Members treatment no less favorable than that it 
accords to its own nationals with regard to the pr otection of intellectual property.  Additionally, 
because Article 4 of the Copyright Law, in  conjunction with the nationality-dependent 
pre-authorization and pre-distribu tion review processes established by the other measures at issue, 
causes foreign authors of works whose publication or  distribution has not been authorized or is 
otherwise prohibited not to enjoy the rights grante d to Chinese authors, the measures at issue appear 
to be inconsistent with China's obligations under Ar ticle 9.1 of the TRIPS Agreement (with respect at 
least to China's obligations under that article of the TRIPS Agreement to comply with Articles 5(1) 
and 5(2) of the Berne Convention).  
In addition, Article 4 of China's Copyright La w, both independently and in conjunction with 
the other measures at issue, appears to make it impo ssible to enforce copyrights (and, to the extent 
covered by Article 4, related rights) with respect  to works, performances or sound recordings whose 
publication or distribution in China has not been aut horized or is otherwise prohibited.  It therefore 
appears that, as a result of the measures at issue, Ch ina fails to ensure that enforcement procedures as 
specified in Part III of the TRIPS Agreement are available under its law so as to permit effective 
action against infringements (including expediti ous remedies to prevent infringement) of those 
copyrights and related rights in such circumstanc es, and that China does not provide for criminal 
procedures and penalties to be applied in certain case s of copyright piracy.  The measures at issue thus 
appear to be inconsistent with China's ob ligations under Articles 41.1 and 61 of the TRIPS 
Agreement.  
*  *  *  *  * 
Accordingly, the United States respectfully request s, pursuant to Article 6 of the DSU, that 
the Dispute Settlement Body establish a panel to ex amine these matters, with the standard terms of 
reference as set out in Article 7.1 of the DSU.    
                                                     
 
19 See, e.g ., the Administrative Regulations on Audiovisual Products, articles 16, 28 and 36, and the 
Administrative Regulations on Electronic Publications, articles 28, 33, and 58-59. WT/DS362/R 
Page D-8  
 
 
 ANNEX D-2 
LETTER DATED 21 APRIL 2008  
FROM THE PANEL TO THE INTERNATIONAL BUREAU OF WIPO 
 
 
 
 At its meeting on 25 September 2007, the WT O Dispute Settlement Body established the 
Panel on China – Measures affecting the Protection and Enforcement of Intellectual Property Rights 
pursuant to the request by the United States in  document WT/DS362/7 (please see the attached 
document), in accordance with Article 6 of the Disp ute Settlement Understanding.  On 13 December 
2007, a Panel was composed to examine this  complaint (please see the attached document 
WT/DS362/8).   Certain provisions of the Berne Convention for the Protection of Literary and Artistic Works 
have been raised in these proceedings as relevant to  the interpretation of Chin a's obligations under the 
TRIPS Agreement.  Given that the International Bur eau of WIPO is responsible for the administration 
of that Convention, the purpose of this letter is to request, on behalf of the Panel, the assistance of the 
International Bureau of WIPO in the form of any fa ctual information available to it relevant to the 
interpretation of the provisions in question, in partic ular as reflected in the materials of diplomatic 
conferences and subsequent developments in the framework of the Berne Union. 
 
 The specific provisions of the Berne Convention in regard to which the Panel would seek this 
assistance at this stage are:  
• Article 5 of the Paris Act of 1971 of the Berne Convention, in particular: 
 
- paragraph (1) regarding the provision that  "Authors shall enjoy, in respect of 
works for which they are protected under this Convention, … the rights specially 
granted by this Convention."; and  
- paragraph (2) regarding the provision that  "The enjoyment and the exercise of 
these rights shall not be subject to any formality;"; and  
 
• Article 17 of the Paris Act of 1971 of the Bern e Convention, in particular as regards its 
relationship to Article 5. 
   
  
 It would facilitate the work of the Panel if  such information could be made available by 
Thursday, 15 May 2008.   WT/DS362/R 
 Page D-9 
 
 
 
  
ANNEX D-3 
REPLY FROM THE INTERNATIONAL BUREAU OF WIPO  
DATED 6 JUNE 2008 
 
Thank you for your letter of April 21, 2008, address ed to Dr. Kamil Idris, Director General of 
the World Intellectual Property Organization (WIPO) , requesting the assistance of the International 
Bureau in providing information available on the pr ovisions of the Berne Convention (1971) relevant 
to the interpretation of Articles 5 and 17, in partic ular as reflected in the materials of diplomatic 
conferences and subsequent developments in the framework of the Berne Union. 
 
I am pleased to attach to this letter a Note con cerning your request. We are at your disposal for 
any further information or advice. 
 WT/DS362/R 
Page D-10  
 
  NOTE 
 
on Certain Provisions of the Berne Convention  
raised by the World Trade Organization 
 
1. This Note contains the observations of the In ternational Bureau of the World Intellectual 
Property Organization (WIPO) in response to a requ est made by Mr. Adrian Macey, Chair, Panel on 
China - Measures affecting the Protection and En forcement on Intellectual Property Rights pursuant 
to the request by the United States in document WT /DS36217, in a letter of April 21, 2008, addressed 
to Dr. Kamil Idris, Director General of WIPO. 
2. The requested information., related to the dispute in the above-mentioned Panel under the 
WTO Dispute Settlement Body, is the following: 
"Any factual information available to the International Bureau on the provisions of 
the Berne Convention (1971) relevant to the interpretation of the provisions in question, in particular as reflected in th e materials of diplomatic conferences and 
subsequent developments in the framework of the Berne Union: 
regarding Article 5 of the Paris Ac t of 1971 of the Berne Convention, 
in particular:  
– paragraph (1) regarding the provision that "Authors shall enjoy, in 
respect of works for which they ar e protected under this Convention, 
... the rights specially granted by this Convention, and 
– paragraph (2) regarding the provision that "The enjoyment and the 
exercise of these rights shall not be subject to any formality" 
Article 17 of the Paris Act of 1971 of the Berne Convention, in 
particular as regards its relationship to Article 5." 
3. The information contained in this Note h as been obtained from the analysis of the 
proceedings of the following Conferences of th e Berne Convention, in chronological order: 
• The Diplomatic Conference of 1884: Intern ational Conference for the Protection of 
Authors' Rights held in Berne, from September 8 to 19, 1884 
• The Diplomatic Conference of 1885: Second International Conference for the 
Protection of Literary and Artistic Works, held in Berne, from September 7 to 18, 
1885 
• The Diplomatic Conference of 1886 (Berne  Act): Third International conference for 
the Protection of Literary and Artistic Works,  held in Berne, from September 6 to 9, 
1886 
• The Diplomatic Conference of 1896 (Paris Ac t): Diplomatic Conference held in Paris, 
from April 15 to May 4, 1896 
• The Diplomatic Conference of 1908 (Berlin Act): Diplomatic Conference held in 
Berlin, from October 14 to November 14, 1908 
• Additional Protocol of 1914 (Berne Protoc ol): Additional Protocol to the Convention 
signed in Berne without a conference of revision 
• The Diplomatic Conference of 1928 (Rome Act): Diplomatic Conference held in 
Rome, from May 7 to June 2, 1928 
• The Diplomatic Conference of 1948 (Brussel s Act): Diplomatic Conference held in 
Brussels from June 5 to 26, 1948  WT/DS362/R 
 Page D-11 
 
 
  • The Diplomatic Conference of 1967 (Stockholm Act): Intellectual Property 
Conference held in Stockholm, from June 11 to July 14, 1967 
• The Diplomatic Conference of 1971 (Paris Act): Diplomatic Conference for the 
Revision of the Berne Convention held in Paris, from July 5 to 24, 1971 
 
4. The preparation of this Note has been partly based on the review of official proceedings, and 
partly solely based on the indexes. The official proceedings of the above Conferences do not contain 
indexes by Article, except for the 1967 Stockholm Conference. 
5. The 1914 Additional Protocol to the Conventi on and the 1971 Paris Conference did not refer 
or amend Articles 5 and 17. No information from those proceedings is included in this Note. 
6. Other materials related to subse quent developments of the Bern e Union, such as the period of 
so-called "guided development"1 from 1967 to 1991 and a general re view of the implementation of 
the treaty provisions in all national laws of Berne Union Member States, have not been analyzed for 
this Note. Those cover a vast amount of material wh ich is not available in a systematic and detailed 
indexed form. Any selection of material considered  relevant to the above specific provisions will 
invariably imply risks of interpreta tions which would be incompatible with the neutral status of WIPO 
in relation to the above-mentioned dispute. The Inte rnational Bureau is, however, prepared to furnish 
any non-confidential material in its possession whic h is specified in such a way that it can be 
identified without the need for the International Bur eau to make any interpretations of the substantive 
provisions of the Berne Convention. 
Article 5, paragraph (1)  (Rights guaranteed) and paragraph (2) (No formalities) 
 
7. The protection on rights guaranteed under Article  5(1) with two separate elements: i) the 
national treatment and ii) the rights specially gran ted by the Convention was included in the Berlin 
Act as Article 4, and did not undergo majo r changes in the subsequent revisions. 
8. The wording of the provision regarding the formality-free rule of protection in now Article 
5(2) has not changed since the Berlin Act (then Article 4(2». Issues on the compliance of formalities 
were discussed from the Diplomatic Conference of 1884. 
9. Annex I to this Note contains the following ex cerpts of the International Conference of ] 884, 
regarding Article 2: 
(a) Excerpts of the program proposed by the Swiss Federal Council2, 
(b) Excerpts of discussions of Second Session (President Numa Droz)3, 
(c) Excerpts of discussions of Fifth Session (President Numa Droz)4, 
(d) Excerpts of the Draft Convention for the creation of a General Union for the authors' 
rights protection5. 
                                                      
1 A term used by Sam Ricketson in: "The Berne Convention, for the Protection of Literary and Artistic 
Works," Centre for Commercial Law Studies, Kluwer, 1987, p. 919 
2 Source: Actes de la Conference International pour la Protection des CEuvres Litteraires et Artistiques 
reunie it Berne du 8 au 19 de septembre 1884 (in the following referred to as "Actes 1884"), p. 11 
3 Source: Actes 1884, pp. 27 and 30 
4 Source: Actes 1884, pp. 39 to 43 
5 Source: Actes 1884, pp. 77 and 78 WT/DS362/R 
Page D-12  
 
  10. Annex II to this Note contains the following ex cerpts of the Second International Conference 
of 1885, regarding Article 2: 
(a) Excerpts of discussions of Second Session (President Numa Droz)
6, 
(b) Excerpts of discussions of Third Session (President Numa Droz)7,  
(c) Excerpts of the Report of the Commission (president Numa Droz)8, 
(d) Excerpts of the adopted text by the Conference9. 
11. Annex III to this Note contains the following excerpts of the Third International Conference 
of 1886, related to Article 2: 
(a) Text of Article 2 of the Convention10. 
12. Annex IV to this Note contains the following ex cerpts of the Records of the Conference of the 
1896 Paris Act of the Convention, related to Article 2: 
(a) Proposal of modification of the French Administration11, 
(b) Excerpts of wishes (vreux) related to the provisions of the Convention12, 
(c) Excerpts of wishes (vreux) related to internal legislation13, 
(d) Excerpts of discussions in Second Session (President M. C. de Freycinet)14, 
(e) Excerpt of the Table of proposals, counte r proposals and amendments submitted to 
the Conference15, 
(f) Excerpts of discussions in Third Session (President M. C. de Freycinet)16, 
(g) Excerpts of proposals adopted by the Commission and presented to the Conference in 
its session 17, 
(h) Excerpts of the Report presented on behalf of the Commission by the French 
Delegation18, 
                                                      
6 Source: Actes de la 2me Conference Internationa l pour la Protection des CEuvres Litteraires et 
Artistiques reunie it Berne du 7 au 18 de septembre ] 885 (in the following referred to as "Actes 1885"), pp. 19 
to 21 
7 Source: Actes 1885, pp. 25 to 28 
8 Source: Actes 1885, pp. 39 and 42 
9 Source: Actes 1885, pp. 73 and 74 
10 Source: Actes de la 3me Conference Internationa l pour la Protection des CEuvres Litteraires et 
Artistiques reunie 11 Berne du 6 au 9 de septembre 1886 (in the following referred to as "Actes 1886"), pp. 27, 
30 and 32 
11 Source: Actes de la conference reunie it Paris du 15 avril au 4 mai 1896 (in the following referred to 
as "Actes 1896"), pp. 35, 36 and 37 
12 Source: Actes 1896, pp. 53 and 54 
13 Source: Actes 1896, p. 75 
14 Source: Actes 1896, pp. 103, 111 and 112 
15 Source: Actes 1896, p. 121 
16 Source: Actes 1896, pp. 127 to 132 
17 Source: Actes 1896, pp. 153 and 157  WT/DS362/R 
 Page D-13 
 
 
  (j) Excerpts of the adopted Act19, 
(k) Interpretative declaration20. 
13. Annex V to this Note contains the following excerpts from the Records of the Conference of 
the 1908 Berlin Act of the Convention: 
(a) Excerpts of proposals of modification of Article 221, 
(b) Excerpts of the provisional text of the Convention22, 
(c) Excerpts of wishes (vreux) related to Article 2 of the Convention23, 
(d) Excerpts of wishes (vreux) related to internal legislation24, 
(e) Excerpts of the discussions of the Second Session (President Dr. Von Studt). 
Presentation of the proposal of the Government of Gennany, made by Dr. 
Osterrieth25, 
(f) Excerpts of the discussions of the Second Session (President Dr. Von Studt). 
Presentation of the proposal of the Government of Gennany, made by Professor, Dr. Rothlisberger
26, 
(g) Excerpt of the Table of proposals, counte r proposals and amendments submitted to 
the Conference27, 
(h) Exposition of Motives of new modifications presented by the Belgian Delegation28, 
(i) Excerpts of the discussions of the Third Session (President Dr. Von Studt)29, 
(j) Excerpts of the annexes of discussions in Third Session. Report presented to the 
Conference by the Commission, regarding Article 4 (Mr. Louis Renault)30, 
(k) Excerpts of the draft of the Revision of the Convention regarding Article 431, 
(l) Excerpt of the Table of proposals, counte r proposals and amendments submitted to 
the Commission32, 
                                                                                                                                                                     
18 Source: Actes 1896, pp. 160 to 164 
19 Source: Actes 1896, pp. 217 and 220 
20 Source: Actes 1896, p. 225 
21 Source: Actes de la conference reunie it Berlin du 14 octobre au 14 novem bre 1908 (in the following 
referred to as "Actes 1908"), pp. 55 to 57 
22 Source: Actes 1908, pp. 71 and 72 
23 Source: Actes 1908, pp. 81 to 83 
24 Source: Actes 1908, pp. 104 and 105 
25 Source: Actes 1908, pp. 157, 160, 161 and 169 
26 Source: Actes 1908, pp. 177 and 178 
27 Source: Actes 1908, pp. 184 and 185 
28 Source: Actes 1908, pp. 192 to 199 
29 Source: Actes 1908, pp. 209 and 214 
30 Source: Actes 1908, pp. 225, 240 and 241 
31 Source: Actes 1908, pp. 278 and 279 
32 Source: Actes 1908, pp. 283 and 284 WT/DS362/R 
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  (m) Excerpts of the adopted Act regarding Article 4
33. 
14. Annex VI to this Note contains the following excerpts from the Records of the Conference of 
the 1928 Rome Act of the Convention, rega rding Article 4, first and second indents: 
(a) Excerpts of wishes (vreux) related to specific provisions of the Convention34, 
(b) Excerpts of wishes (vreux) non-related to specific provisions of the Convention35, 
(c) Excerpts from the Program of the Conference36, 
(d) Excerpts of proposals, counter-propo sals and observations of the British 
Administration37 
(e) Excerpts of proposals, counter-proposals and observations of the French 
Administration38, 
(f) Excerpts of proposals, counter-proposals and observations of the Norwegian 
Administration39, 
(g) Excerpts of the Summary of proposals and discussions40, 
(h) Excerpts of Second Plenary session41, 
(i) Excerpts of the adopted Act42. 
15. Annex VII to this Note contains the followi ng excerpts from the Records of the Conference of 
the 1948 Brussels Act of the Convention, releva nt to Article 4, paragraphs (1) and (2): 
(a) Excerpt of the adoption of the text of the Act43, 
(b) Excerpts from the General Report (presented by Mr. Marcel Plaisant, Rapporteur-
General)44, 
(c) Excerpts of the preparatory works and group debates45, 
(d) Excerpts of wishes (vreux) expressed by various congresses and meetings between 
1927 and 1935, relating to Article 446, 
                                                      
33 Source: Actes 1908, pp. 311 and 315 
34 Source: Actes de la conference reunie a Rome du 7 mai au 2 juin 1928 (in the foJlowing referred to 
as "Actes 1928"), pp. 30 and 40 
35 Source: Actes 1928, pp. 41 and 45 
36 Source: Actes 1928, pp. 61, 67 and 68 
37 Source: Actes 1928, pp. 87, 91 and 92 
38 Source: Actes 1928, p. 99 
39 Source: Actes 1928, p. 111 
40 Source: Actes 1928, pp. 221, 233 and 234 
41 Source: Actes 1928, pp. 285 and 290 
42 Source: Actes 1928, pp. 329 and 337 
43 Source: Documents de la conference reunie it Br uxelles du 5 au 26 juin 1948 (in the following 
referred to as "Documents 1948"), p. 81 
44 Source: Documents 1948, pp. 93 and 96 
45 Source: Documents 1948, pp. 133, 170 to 172, and 178  WT/DS362/R 
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  (e) Excerpts of wishes (vreux) expressed by various congresses and meetings between 
1927 and 1935, non-related to specific provisions of the Convention47, 
(f) Excerpts of wishes (vreux) expressed by various congresses and meetings between 
1927 and 1935, concerning certain countries48, 
(g) Excerpts of the adopted Act49. 
16. Annex VIII to this Note contains the followi ng excerpts from the Records of the Conference 
of the 1967 Stockholm Act of the Convention, re levant to Article 5 paragraphs 1 and 2: 
(a) Basic proposal (Sweden and BIRPI) regardi ng Article 4, paragraphs (1) and (3), 
S/150, 
(b) Observations on basic proposals by the G overnment of Switzerland, regarding 
Article 4(1)51, 
(c) Observations on basic proposals by the Secretariat, regarding Article 4, 
paragraphs (1) and (3)52, 
(d) Proposal from the Chairman of Main Committee I, regarding Article 5, paragraph (1) 
and (2)53, 
(e) Proposal from the Government of Switzerland,  regarding Article 4, paragraphs (1) 
and (5)54, 
(f) Proposal from the Secretariat to the Drafting Committee55, 
(g) Proposal from the Government of Brazil, regarding Article 4(1)56, 
(h) Proposal from the Secretariat, after discussion with the Drafting Committee, 
regarding Article 5, paragraph (1) and (2)57, 
(i) Draft Report of Main Committee I58, 
(j) Excerpt from the final text of Report of  Main Committee I (Rapporteur Svante 
Bergstrom)59, 
(k) Excerpts of the Summary Minutes of Main Committee I60; 
                                                                                                                                                                     
46 Source: Documents 1948, p. 438 
47 Source: Documents 1948, p. 475 
48 Source: Documents 1948, p. 482 
49 Source: Documents 1948, pp. 530 to 533 
50 Source: Records of the Intellectual Property Conference of Stockholm, June 11 to July 14, 1967 (in 
the following referred to as "Records 1967"), document S/1, pp. 71,90, 92, and 151 
51 Source: Records 1967, document S/17, pp. 662 and 664 
52 Source: Records 1967, document S/18, p. 667 
53 Source: Records 1967, document S/44, p. 687 
54 Source: Records 1967, document S/63 p. 690 
55 Source; Records 1967, document S/187, pp. 708 and 709 
56 Source: Records 1967, document S/21 0, p. 704 
57 Source: Records 1967, document S/241-Annex, pp. 721 and 723 
58 Source: Records 1967, document S/271, p. 739 
59 Source: Records 1967, p. 1131; paragraphs 11, 18 to 31, p. 1133f WT/DS362/R 
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  (l) Excerpts of the Summary Minutes of the Plenary of the Berne Union regarding 
Article 5
61, 
(m) Text in Stockholm Act, regarding Article 5, paragraphs (1) and (2)62. 
Article 17 (Possibility of Control of Circulation,  Presentation and Exhibition of Works) 
 
17. This provision was included since the incepti on of the Berne Convention, and has remained 
unchanged since the Berne Act, except for mi nor wording changes and renumbering (becoming 
Article 10, 13 or 14). 
18. Annex IX to this Note contains the followi ng excerpts of the International Conference of 
1884, regarding Article 14: 
(a) Excerpts of discussions of Fifth Session (president Numa Droz)63, 
(b) Excerpts of the Draft Convention for the creation of a General Union for the authors' 
rights protection64, 
19. Annex X to this Note contains the following excerpts of the Second International Conference 
of 1885: 
(a) Excerpts of discussions of Fourth Session, related to Article 14 (President Numa 
Droz)65, 
(b) Excerpts of the Report of the Commission, related to Article 13 (Article 14 of the 
Draft) (President Numa Droz)66, 
(c) Excerpts of the adopted text by the Conference, regarding Article 1367, 
20. Annex Xl to this Note contains the followi ng excerpts of the Third International Conference 
of 1886, related to Article 13: 
(a) Text of Article 13 of the Convention68. 
21. Annex XII to this Note contains the following excerpts of the Records of the Conference of 
the 1896 Paris Act of the Convention, related to Article 13: 
(a) Excerpts of discussions in Second Session (President M. C. de Freycinet)69; 
                                                                                                                                                                     
60 Source; Records 1967, paragraphs 468.2 to 464 (on the organization of the work of Main Committee 
I) p. 837f; paragraphs 485 to 489 (on criterion of nationality), p. 839;  paragraphs 594 to 606.1,630.1 to 641,698 
to 707 (criteria of eligibility) p. 847f 
61 Source: Records 1967, paragraph 93, p. 804 
62 Source: Records 1967, p. 1287 and 1290 
63 Source: Actes 1884, pp. 39 and 58 
64 Source: Actes 1884, pp. 77,80 and 81 
65 Source: Actes 1885, pp. 33 and 35 
66 Source: Actes 1885, pp. 39,40, 51 
67 Source: Actes 1885, pp. 73 and 77 
68 Source: Actes 1886, pp. 27 and 33 
69 Source: Actes 1896, pp. 91 and 117  WT/DS362/R 
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  (b) Excerpts of proposals adopted by the Commission and presented to the Conference in 
its session70. 
22. Annex XIII to this Note contains the followi ng excerpts from the Records of the Conference 
of the 1908 Berlin Act of the Convention: 
(a) Excerpts of proposals of modification regarding Article 1371, 
(b) Excerpts of the provisional text of the Convention, regarding Article 1072, 
(c) Excerpts of the discussions of the Third Session, regarding Articles 14 to 24 
(President Dr. Von Studt)73, 
(d) Excerpts of the annexes of discussions in Third Session. Report presented to the 
Conference by the Commission, regarding Article 17 (Mr. Louis Renault)74, 
(e) Excerpts of the adopted Act, regarding Article 1775. 
23. Annex XIV to this Note contains the followi ng excerpts from the Records of the Conference 
of the 1928 Rome Act of the Convention: 
(a) Excerpts of proposals, counter-propo sals and observations of the British 
Administration, relevant to Article 1776; 
(b) Excerpts of the Summary of proposals and discussions regarding Articles II, 11 bis 
and 1777, 
(c) Excerpts of the adopted Act, regarding Article 1778. 
24. Annex XV to this Note contains the following excerpts from the Records of the Conference of 
the 1948 Brussels Act of the Conven tion, relevant to Article 17: 
(a) Excerpt of the adoption of the text of the Act79, 
(b) Excerpts from the General Report (presented by Mr. Marcel Plaisant, Rapporteur-
General)80, 
(c) Excerpts of the preparatory works and group debates81, 
(d) Excerpts of the adopted Act82. 
                                                      
70 Source: Actes 1896, pp. 153 and 155 
71 Source: Actes 1908, pp. 55, 62 and 63 
72 Source: Actes 1908, pp. 71 and 74 
73 Source: Actes 1908, pp. 209 and 217 
74 Source: Actes 1908, pp. 225 and 267 
75 Source: Actes 1908, pp. 311 and 319 
76 Source: Actes 1928, pp. 91 and 94 
77 Source: Actes 1928, pp. 221, 254 to 261, and 270 
78 Source: Actes 1928, pp. 329 and 342 
79 Source: Documents 1948, pp. 81 and 82 
80 Source: Documents 1948, pp. 93 and 105 
81 Source: Documents 1948, pp. 133 and 376 
82 Source: Documents 1948, pp. 530 and 531, 544 and 545 WT/DS362/R 
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  25. Annex XVI to this Note contains the followi ng excerpts from the Records of the Conference 
of the 1967 Stockholm Act of the Conv ention, relevant to Article 17: 
(a) Basic proposal (Sweden and BIRPI), S/1
83, 
(b) Observations on basic proposals by the Government of United Kingdom84, 
(c) Proposal from the Government of United Kingdom concerning Article 1785, 
(d) Proposal from the Government of Australia concerning Article 1786,  
(e) Proposal from the Government of Israel concerning Article 1787, 
(f) Proposal from the Government of Italy concerning Article 1788, 
(g) Proposal from the Secretariat to the Drafting Committee concerning Article 1789, 
(h) Report of the Drafting Committee to Main Committee I90,  
(i) Draft Report of Main Committee I91, 
(j) Approved text of Main Committees I, II, and IV92, 
(k) Excerpt from the final text of Report of  Main Committee I (Rapporteur Svante 
Bergstrom) relating to Article 1793, 
(l) Excerpts of the Summary Minutes of Main Committee I94, 
(m) Excerpts of the Summary Minutes of the Plenary of the Berne Union95,  
(n) Text of Article 17 in Stockholm Act96. 
 
[End of Note. Annexes follow ] 
 
__________ 
                                                      
83 Source: Records 1967, document S/1 , pp. 148 and 149, 160 and 161 
84 Source: Records 1967, documents S/13, p. 631; S/18, p. 673 
85 Source: Records 1967, document S/171, p. 704 
86 Source: Records 1967, document S/215 p. 715 
87 Source: Records 1967, document S/223, p. 716 
88 Source: Records 1967, document S/226, p. 716 
89 Source: Records 1967, document S/241, pp. 721 and 722 
90 Source: Records 1967, document S/269, pp. 734 and 735 
91 Source: Records 1967, Document S/271, pp. 739 to 746 
92 Source: Records 1967, Document S/278, p. 752 
93 Source: Records 1967, p 1131; paragraphs 257 to 263, pp. 1173 to 1175 
94 Source: Records 1967, paragraphs 1385.1 to 1388.2,1428.1 to 1439 (on the limitation on exhibition 
of works) p. 907f; paragraphs 1389.1 to 1395, 1407 to 1427 (abuse of monopoly position) p. 908f; paragraphs 
1722 to 1727 (discussion on the texts proposed by the Drafting Committee) p. 929; and paragraphs 1878 to 1896 
(examination of the report of Main Committee I) p. 937 and 938. 
95 Source: Records 1967, paragraphs 125.1 to 132, p. 806 
96 Source: Records 1967, pp. 1287 and 1298