UNITED STATES – SECTION 110(5) OF US COPYRIGHT ACT
Document: Request for the Establishment of a Panel by the European Communities and their Member States
Date: 16 April 1999
Document codes: WT/DS160/5
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 the Establishment of a Panel by the European Communities
and their Member States
The following communication, dated 15 April 1999, from the Permanent Delegation of the
European Commission to the Chairman of the Disp ute Settlement Body, is circulated pursuant to
Article 6.2 of the DSU.
My authorities have asked me to submit the following request on behalf of the European
Communities and their Members States for consideration at the next meeting of the Dispute
Settlement Body.
Section 110(5) of the United States Copyright Act, as amended by the "Fairness in Music
Licensing Act" enacted on 27 October 1998, exempts, under certain conditions, the communication or
transmission embodying a performance or display of a work by the public reception of the
transmission on a single receiving apparatus of a kind commonly used in private homes (sub-
paragraph A) and, also under certain conditions, communication by an establishment of a transmission
or retransmission embodying a performance or display of a non dramatic musical work intended to be
received by the general public (subparagraph B) from obtaining an authorisation to do so by the
respective right holder. 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.
However, Article (9)1 of the WTO Agreement on Trade-Related Aspects of Intellectual
Property Rights contained in Annex 1C to the Ag reement Establishing the
(hereafter the "TRIPS Agreement") obliges WTO Members to comply with Articles 1 to 21 of the
Berne Convention for the Protection of Literary and Artistic Works (hereafter the "Berne
Convention").
Article 11bis(1) of the Berne Convention, as revised by the Paris Act of 1971 grants the
authors 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 any other analogous instrument.
Article 11(1) of the same Convention grants the authors 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.
As a consequence of the above, Section 110(5) of the United States Copyright Act appears to
be inconsistent with the United States' obligations under the TRIPS Agreement, including, but not
limited to, Article 9(1) of the TRIPS Agreement.

In a communication dated 26 January 1999 (WT/DS160/1-IP/D/16) the European
Communities and their Member States requested consultations with the United States of America
pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes contained in Annex 2 of the WTO Agreemen t (hereafter "the DSU"). Such consultations,
which were held on 2 March 1999 in Geneva, have allowed a better understanding of the respective
positions, but have not led to a satisfactory resolution of the dispute.
Accordingly, the European Communities and their Member States request the establishment
of a panel pursuant to Article 6 of the DSU and Ar ticle 64:1 of the TRIPS Agreement to examine the
matter in the light of the relevant provisions of the TRIPS Agreement and to find that the United
States of America fails to conform to the obligations contained in the TRIPS Agreement, including,
but not limited to, Article 9(1) of the TRIPS Agreement, and thereby nullifies or impairs the benefits
accruing directly or indirectly to the European Communities and their Member States under the
TRIPS Agreement.
The European Communities and their Member States request that the panel be established
with the standard terms of reference as provided for in Article 7 of the DSU.