UNITED STATES - SECTION 110(5) OF US COPYRIGHT ACT
Document: Request for Consultations by the European Communities and their Member States
Date: 4 February 1999
Document codes: WT/DS160/1; IP/D/16
Complainant: EU
Respondent: U.S.
Third parties: Australia, Brazil, Canada, Japan, Switzerland
Dispute stage: Panel
Agreements cited: Art. 9.1  Intellectual Property (TRIPS)

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 transmi ssion 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 Stat es 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 appe ar 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).

IP/D/16

The European Communities and their Member Stat es consider that reference to the above
legal basis does not rule out recourse to any other pertinent provision of the Agreement establishing
the WTO and of the Agreements annexed to it.
The European Communities and their Member Stat es look forward to receiving your reply to
this request and to fixing a mutually acceptable date for consultations.