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Santa Cruz, Maximiliano --- "WTO Panel on United States – Section 110(5) of the US Copyright Act" [2010] ELECD 564; 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 7

Section Title: WTO Panel on United States – Section 110(5) of the US Copyright Act

Author(s): Santa Cruz, Maximiliano

Number of pages: 24

Extract:

7 WTO panel on United States ­ Section
110(5) of the US Copyright Act
Maximiliano Santa Cruz


Introduction
This dispute between the European Communities and the United States1
is the only controversy on the issue of copyright that has got to the
stage where the Dispute Settlement Body (DSB) of the World Trade
Organization (WTO) has adopted a panel report.2 At issue was the
compatibility of certain limitations to the exclusive rights of right holders
incorporated in the US Copyright Act3 with the TRIPS Agreement and
the substantive provisions of the Berne Convention.
The exceptions in dispute (known as the homestyle exception and the
business exception) except certain food, drinking and retail establishments
from paying royalties for the public communication by radio or TV of a
broadcast embodying a work.
The parties to the dispute did not disagree on whether the limitations in
US law implicated the exclusive rights of communication to the public,4
but whether they complied with the TRIPS general copyright exception
clause, known as the three-step test.
Interestingly, at the same time that this dispute was being litigated,
another WTO panel was deciding on the issue of exceptions and limita-
tions, but this time in relation to patent rights. In that case (see Chapter
9, Canada ­ Patent Protection of Pharmaceutical Products), the respective
panel also made an extensive analysis of the (Berne Convention's) three-
step test, as the precedent for the general patent exception clause in the


1
The report of the Panel ...