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Shabalala, Dalindyebo --- "United States – Section 110(5) of the US Copyright Act: Summary and Analysis" [2010] ELECD 563; in Correa, M. Carlos (ed), "Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules" (Edward Elgar Publishing, 2010)

Book Title: Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules

Editor(s): Correa, M. Carlos

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849801072

Section: Chapter 6

Section Title: United States – Section 110(5) of the US Copyright Act: Summary and Analysis

Author(s): Shabalala, Dalindyebo

Number of pages: 49

Extract:

6 United States ­ Section 110(5) of the US
Copyright Act: summary and analysis
Dalindyebo Shabalala


1. Introduction
That this was the first TRIPS Copyright case is reason enough to pay
attention. It was however, also the first case to interpret the three step test
as embodied in Article 13 of the Agreement on Trade-related Intellectual
Property Rights (TRIPS), a test of the fundamental international bargain
presented by the TRIPS Agreement. For copyright people, the addi-
tional significance lies in that it was the first interpretation by a tribunal
of the three-step test that had its roots in the Berne Convention, which
was added in the 1967 Stockholm revision. The case had the potential to
transform the ways in which domestic legislators balanced public welfare
against the interests of rights holders. Subsequent scholarship since the
case, and the fact that there has not been a follow-up case suggest that,
far from clarifying, or establishing a significant precedent, the Panel in the
case did little to address the problems of clarity, while adding several more
confusing elements. This chapter examines the case in the light of that
subsequent scholarship, by providing an analysis of the case that focuses
on the litigation choices of the parties, and the methodology and reasoning
of the Panel in analyzing the test. It then discusses some of the reactions to
the Panel decision and what the Panel decision may mean for developing
country policies in this area. The key conclusion that can be ...