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Section 110(5) of US Copyright Act

Key Facts
Short Title: US — Section 110(5) (EC)
Respondent: United States
Third Parties: Brazil; Canada; Switzerland; Japan; Australia;
Complaintant(s): European Communities;
Dispute Number: DS160
Link to Dispute Site: http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds160_e.htm
Dispute Status: Pending

As amended in 1998 by the Fairness in Music Licensing Act, section 110(5) of the U.S. Copyright Act exempts certain retail and restaurant establishments that play radio or television music from paying royalties to songwriters and music publishers.  The EU claimed that, as a result of this exception, the United States was in violation of its TRIPS obligations.  Consultations with the EU took place on March 2, 1999.  A panel on this matter was established on May 26, 1999.  On August 6, 1999, the Director-General composed the panel as follows: Ms. Carmen Luz Guarda, Chair, Mr. Arumugamangalam V. Ganesan and Mr. Ian F. Sheppard, Members.  The panel issued its final report on June 15, 2000, and found that one of the two exemptions provided by section 110(5) is inconsistent with the U.S. WTO obligations.  The panel report was adopted by the DSB on July 27, 2000, and the United States has informed the DSB of its intention to respect its WTO obligations.  On October 23, 2000, the EU requested arbitration to determine the period of time to be given the United States to implement the panel’s recommendation.  By mutual agreement of the parties, Mr. J. Lacarte-Muró was appointed to serve as arbitrator.  He determined that the deadline for implementation should be July 27, 2001.  On July 24, 2001, the DSB approved a U.S. proposal to extend the deadline until the earlier of the end of the then-current session of the U.S. Congress or December 31, 2001.

On July 23, 2001, the United States and the EU requested arbitration to determine the level of nullification or impairment of benefits to the EU as a result of section 110(5) (B).  In a decision circulated to WTO Members on November 9, 2001, the arbitrators determined that the value of the benefits lost to the EU in this case is $1.1 million per year.  On January 7, 2002, the EU sought authorization from the DSB to suspend obligations vis-a-vis the United States.  The United States objected to the details of the EU request, thereby causing the matter to be referred to arbitration.

However, because the United States and the EU have been engaged in discussions to find a mutually acceptable resolution of the dispute, the arbitrators suspended the proceeding pursuant to a joint request by the parties filed on February 26, 2002.

On June 23, 2003, the United States and the EU notified the WTO of a mutually satisfactory temporary arrangement regarding the dispute.  Pursuant to this arrangement, the United States made a lump-sum payment of $3.3 million to the EU, to a fund established to finance activities of general interest to music copyright holders, in particular awareness-raising campaigns at the national and international level and activities to combat piracy in the digital network.  The arrangement covered a three-year period, which ended on December 21, 2004.