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

Abstract

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 by Article 13 of the TRIPS Agreement, a test of the fundamental international bargain presented by the TRIPS Agreement. For copyright people, the additional 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 that was added in the 1967 Stockholm revision. The case had the potential to transform the ways in which domestic legislators balanced the public welfare against the interests of rightsholders. The 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 made is that the various failures of the Panel, the specific context and subject matter of the case, as well as the lack of an appellate body statement of the test all suggest that the interpretation of the three step test remains an open subject, on which state practice may still have a significant influence.

Keywords: TRIPS, Copyright, intellectual property, WTO, dispute settlement, DSU, Berne Convention, three step test