[Federal Register Volume 66, Number 23 (Friday, February 2, 2001)]
[Notices]
[Pages 8838-8839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-2796]


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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

[Docket No. WTO/D-160]


WTO Dispute Settlement Proceeding Regarding Section 110(5) of the 
U.S. Copyright Act

AGENCY: Office of the United States Trade Representative.

ACTION: Notice; request for comments.

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SUMMARY: The Office of the United States Trade Representative 
(``USTR'') is providing notice of the date by which the United States 
is to respond to the recommendations and rulings of the Dispute 
Settlement Body (``DSB'') of the World Trade Organization (``WTO'') in 
United States--Section 110(5) of the U.S. Copyright Act, a dispute 
brought by the European Communities (the ``EC''), to examine Section 
110(5) of the U.S. Copywright Act. In this dispute, the EC alleged that 
Section 110(5) is inconsistent with obligations of the United States 
under the WTO Agreement on Trade-Related Aspects of Intellectual 
Property Rights (TRIPs Agreement). After full briefing and hearings, 
the Panel determined that Section 110(5)(A)(the ``homestyle 
exemption'') did not violate the TRIPs Agreement, but that Section 
110(5)(B) (the ``Fairness in Music Licensing Act of 1998'') was 
inconsistent with U.S. obligations. In September 2000, the United 
States confirmed to the DSB its commitment to implement the 
recommendations and rulings of the DSB in a manner which respects U.S. 
WTO obligations. As a result of arbitral proceedings the United States 
has a period of twelve months from the date of adoption of the panel 
report--i.e., until July 27, 2001--to implement the recommendations and 
rulings of the DSB. The USTR invites written comments from the public 
concerning the manner in which it should respond.

DATES: Comments should be submitted by February 26, 2001, to be assured 
of timely consideration by the USTR in developing a response to the DSB 
recommendations and rulings.

ADDRESSES: Comments are to be submitted to Sandy McKinzy, Litigation 
Assistant, Office of Monitoring and Enforcement, Room 122, Attn: U.S.--
Section 110(5) Dispute, Office of the United States Trade 
Representative, 600 17th Street, NW., Washington, DC 20508.

FOR FURTHER INFORMATION CONTACT: Melida N. Hodgson, Associate General 
Counsel, (202) 395-3582; Claude Burcky, Director of Intellectual 
Property, (202) 395-6864.

SUPPLEMENTARY INFORMATION: On April 15, 1999, the EC submitted a 
request for the establishment of a WTO dispute settlement panel to 
examine Section 110(5) of the U.S. Copyright Act, which provides that, 
under certain conditions, the communications of musical works via a 
radio or television by certain establishment shall not constitute 
copyright infringement. The DSB established a panel for this purpose on 
May 26, 1999, and the panel was composed on August 6, 1999. In June 15, 
2000, after full briefing and hearings, the panel issued 
recommendations and rulings. These were adopted by the DSB on July 27, 
2000. In August and September 2000 the United States affirmed that it 
would implement the DSB's recommendations and rulings. On October 23, 
2000 the EC requested arbitration on the reasonable period of time for 
the United States to implement the DSB's recommendations and rulings. 
The arbitrator issued a report on January 15, 2001, granting the United 
States a period of twelve months, or until July 27, 2001 to implement 
the DSB's recommendations and rulings.

Major Issues Raised and Legal Basis of the Complaint

    The EC alleged that Section 110(5), as amended by the Fairness in 
Music Licensing Act of 1998, violates Article 9(1) of the TRIPS 
Agreement, which incorporates Articles 1 to 21 of the Berne Convention 
for the Protection of Literary and Artistic Works (the ``Berne 
Convention''). More specifically, the EC alleged that Section 110(5) is 
inconsistent with Articles 11(1) and 11bis(1) of the Berne Convention 
which grants authors of literary and artistic works, including musical 
works, certain exclusive rights. Section 110(5) provides under 
subparagraph (A) that the communication of a 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 is not an infringement of copyright unless a direct 
charge is made to see or hear the transmission, or the transmission 
thus received is further transmitted to the public. Subparagraph (B) of 
Section 110(5) provides that, under certain conditions relating, inter 
alia, to the size of the establishment and the number of loudspeakers 
or audiovisual devices, the communication by an establishment of a 
transmission or retransmission embodying a performance or display of a 
nondramatic musical work intended to be received by the general public, 
originated by a licensed radio or television broadcast station, is not 
an infringement of copyright.
    The Panel found that Section 110(5)(A) was consistent with the 
TRIPs Agreement, but that Section 110(5)(B) was too broad and therefore 
did not satisfy the requirements of an exception to TRIPs.

Public Comment: Requirements for Submissions

    Interested persons are invited to submit written comments 
concerning the issues raised in this dispute. Comments must be in 
English and provided in fifteen copies to Sandy McKinzy at the address 
provided above. A person requesting that information contained in a 
comment submitted by that person be treated as confidential business 
information must certify that such information is business confidential 
and would not customarily be released to the public by the submitting 
person. Confidential business information must be clearly marked 
``BUSINESS CONFIDENTIAL'' in a contrasting color ink at the top of each 
page of each copy.
    Information or advice contained in a comment submitted, other than 
business confidential information, may be determined by the USTR to be 
confidential in accordance with section 135(g)(2) of the Trade Act of 
1974 (19 U.S.C. 2155(g)(2)). If the submitting person believes that 
information or advice may qualify as such, the submitting person--

[[Page 8839]]

    (1) Must so designate the information or advice;
    (2) Must clearly mark the material as ``SUBMITTED IN CONFIDENCE'' 
in a contrasting color ink at the top of each page of each copy; and
    (3) Is encouraged to provide a non-confidential summary of the 
information or advice.
    Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), the 
USTR maintains a file on this dispute settlement proceeding, accessible 
to the public, in the USTR Reading Room: Room 101, Office of the United 
States Trade Representative, 600 17th Street, NW., Washington, DC 
20508. The public file will include all non-confidential comments 
received by the USTR from the public in response to this request. An 
appointment to review the public file (Docket WTO/D-160, United 
States--Section 110(5) of the U.S. Copy right Act) may be made by 
calling Brenda Webb, (202) 395-6186. The USTR Reading Room is open to 
the public from 9:30 a.m. to 12 noon and 1 p.m. to 4 p.m., Monday 
through Friday.

A. Jane Bradley,
Assistant U.S. Trade Representative for Monitoring and Enforcement.
[FR Doc. 01-2796 Filed 2-1-01; 8:45 am]
BILLING CODE 3190-01-M