Document: 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
Date: 21 April 2008
Document codes: WT/DS362/R
Complainant: U.S.
Respondent: China
Third parties: Argentina, Australia, Brazil, Canada, EU, India, Japan, South Korea, Mexico, Taiwan, Thailand, Turkey
Dispute stage: Panel
Agreements cited: Art. 61, 41.1, 46, 59, 9.1, 14, 3.1  Intellectual Property (TRIPS)

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

ANNEX D – 1
REQUEST FOR THE ESTABLISHMENT OF THE PANEL
BY THE UNITED STATES

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 enforcement 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.

(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 1331 st Session of the Judicial Committee of the Supreme
People's Court on 2 November 2004 and the 28 th 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 1422 nd Session of the Judicial
Committee of the Supreme People's Court and the 75 th 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 procedures and penalties. However, under Article 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 Supreme 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).

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 People'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 issue 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.

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, promulgated on 25 December 2001.
7 State Council Order No. 341, adopted at the 50th executive meeting of the State Council on
12 December 2001, promulgated on 25 December 2001.
8 State Council Order No. 343, adopted at the 50th executive meeting of the State Council on
12 December 2001, promulgated on 25 December 2001.
9 Order No. 11 of the General Administration of Press and Publication (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]).

(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 Development 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 China 18) 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 obligations under the TRIPS Agreement in respect of
the rights conferred under Article 6bis 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.

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 recordings (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 producers' 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 cases 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.

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 China's obligations under the
TRIPS Agreement. Given that the International Bureau 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.

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.

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 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 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 the 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 Act): 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

• 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 subsequent developments of the Berne 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 interpretations 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 major 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
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

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 excerpts 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,

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
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

(j) Excerpts of the adopted Act 19,
(k) Interpretative declaration 20.
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

(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, regarding 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 following excerpts from the Records of the Conference of
the 1948 Brussels Act of the Convention, relevant 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

(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, relevant 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

(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

(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 Convention, 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

25. Annex XVI to this Note contains the followi ng excerpts from the Records of the Conference
of the 1967 Stockholm Act of the Convention, 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 ]