United States - Section 110(5) of the US Copyright Act (WT/DS160): Award of the Arbitrator (under Article 25 DSU)

Summary

INTRODUCTION

Proceedings

On 23 July 2001, the European Communities (EC) and the United States (hereinafter also the “parties”) notified to the Dispute Settlement Body (DSB) their mutual agreement to resort to arbitration pursuant to Article 25 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (hereafter the “DSU”). The stated object of the arbitration was to determine the level of nullification or impairment of benefits to the European Communities as a result of the operation of Section 110(5)(B) of the US Copyright Act.

The parties have resorted to this arbitration further to the adoption by the DSB of the report of the panel which, at the request of the European Communities, reviewed the compatibility of Section 110(5) of the US Copyright Act, as amended by the Fairness in Music Licensing Act of 1998, with the Agreement on Trade-Related Aspects of Intellectual Property Rights. The conclusions and recommendations of the panel read as follows:

“7.1 In the light of the findings in paragraphs 6.92-6.95, 6.133, 6.159, 6.211, 6.219, 6.266 and 6.272 above, the Panel concludes that:

(a) Subparagraph (A) of Section 110(5) of the US Copyright Act meets the requirements of Article 13 of the TRIPS Agreement and is thus consistent with Articles 11bis(1)(iii) and 11(1)(ii) of the Berne Convention (1971) as incorporated into the TRIPS Agreement by Article 9.1 of that Agreement.

(b) Subparagraph (B) of Section 110(5) of the US Copyright Act does not meet the requirements of Article 13 of the TRIPS Agreement and is thus inconsistent with Articles 11bis(1)(iii) and 11(1)(ii) of the Berne Convention (1971) as incorporated into the TRIPS Agreement by Article 9.1 of that Agreement.

7.2 The Panel recommends that the Dispute Settlement Body request the United States to bring subparagraph (B) of Section 110(5) into conformity with its obligations under the TRIPS Agreement.”

The parties requested the Chairman of the DSB to contact the original panelists in the dispute, to determine their availability to serve as arbitrators. The Chairperson of the original panel, Mrs. Carmen Luz Guarda and one Member, Mr. A. V. Ganesan, were no longer available.