The fair use doctrine of US copyright law embodies essentially the same goals as Article 13 of TRIPS, and is applied and interpreted in a way entirely congruent with the standards set forth in that Article. Fair use was historically developed as a safety valve to the exclusive rights granted by copyright, permitting limited and reasonable uses without permission or payment precisely those types of uses which do not interfere with the copyright owner's normal exploitation of the work or unreasonably prejudice his or her rights. The classic example of fair use is the quotation in a book review of portions of the book being reviewed. The copyright owner ordinarily does not prepare reviews of his own work, and the impact on his interests will ordinarily be minimal. If, on the other hand, so much material is quoted that the review will substitute for purchases of the book in the marketplace, the use will not be considered fair. The articulation of this concept that was developed by the courts over the years and codified in the Copyright Act in 1976 (17 U.S.C. § 107) identifies four factors that courts must examine in determining whether a use is fair: (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The balancing of the four factors represents a means of evaluating whether in fact the use in question conflicts with a normal exploitation of the work and unreasonably prejudices the copyright owner's interests. The Supreme Court has stated that the fourth factor, which specifically focuses on the impact on potential market exploitation of the work, is the most important. See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985). Other factors may be considered as well, allowing a flexible and sensitive calibration of the impact of the particular use under the circumstances. In applying the fair use doctrine, the courts have consistently refused to excuse uses that go too far and interfere with the copyright owner's normal markets for the work. See, e.g., Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985); American Geophysical Union v. Texaco, Inc., 37 F.3d 881 (2d Cir. 1994); Pacific & Southern Co. v. Duncan, 744 F.2d 1490 (11th Cir. 1984); Basic Books, Inc. v. Kinko's Graphic Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991). Those uses that have been permitted have generally involved productive and non commercial uses of limited amounts of material from the copyrighted work. See, e.g., Arica Institute, Inc. v. Palmer, 970 F.2d 1067 (2d Cir. 1992); Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991); Triangle Pub., Inc. v. Knight Ridder Newspapers, Inc., 626 F.2d 1171 (5th Cir. 1980). In response to the specific question about parody, it is important to understand that not all parodies qualify as fair use under US law. Rather, each parody is dealt with on a case by case basis, applying the factors set out in Section 107 in a manner that takes into account the nature of parody. Thus, the US Supreme Court has held that the purpose and character of parody involves both criticism and humour, giving it social and cultural value, and that a parody, in order to be effective, must necessarily take enough of the copyrighted work to make the object of the parody recognizable. Campbell v. Acuff Rose Music, Inc., 114 S.Ct. 1164 (1994). Not all humorous works that draw on pre-existing works will enjoy the benefit of this more lenient application of the fair use factors, however; the defendant's work must qualify as a true parody, targeting and commenting on the copyrighted work rather than simply using it as a vehicle for unrelated comment. Id. at 1172. In examining the fourth fair use factor, the effect on the actual and potential market for or value of the copyrighted work, the Supreme Court held that any negative impact caused solely by the critical aspect of a parody could not be considered. Id. at 1178. This analysis is consistent with TRIPS Article 13, since any such lessening of public interest in the copyrighted work does not constitute "unreasonable prejudice" to "legitimate interests" of the copyright owner - rather, it is equivalent to the lessening of public interest that may result from a scathing review. This type of harm should not be actionable by a copyright owner; otherwise only flattering commentary or benign parody is likely to be permissible. In contrast, harm to the market for other adaptations of the copyrighted work will clearly weigh against a finding of fair use. Id.

If exploitation of a parody is of a nature that it replaces any desire to exploit the copyright work, the fourth fair use factor applied by the courts will weigh strongly against the defendant, and the use will not be considered fair. As noted in our original answer to this question, the Supreme Court of the United States has specifically directed the lower courts to consider the effect of the parody on the market for other adaptations of the work, in applying the fair use factors. As a result, the right holder's ability to control the exploitation of copies or adaptations of the work is protected.

TRIPS Article 14 requires WTO Member countries to provide protection to performers against the unauthorized fixation or transmission of their performances in phonograms only. US federal law, enacted in 1994, provides such protection to live musical performances. 17 U.S.C. § 1101. These performances constitute the vast majority of performances fixed in phonograms, and those that are of primary economic significance. In fact, US law goes beyond the requirements of TRIPS by providing protection against the unauthorized fixation of live musical performances in any form, not limited to fixation in phonograms. In addition to this new type of protection under federal law, performers of all varieties are protected against unauthorized fixation and use of their performances under various long standing doctrines of state and federal law. The laws of many states contain prohibitions on unauthorized fixations of performances. See, e.g., N.Y. Penal Law §§ 275.15 and 275.20. The US Lanham Act protects performers against those uses of their performances that mislead the public as to source or sponsorship. 15 U.S.C. § 1125. State law also provides rights of publicity, making it unlawful to exploit commercially a performer's name, voice or likeness without his or her consent. See generally 2 J. Thomas McCarthy, THE RIGHTS OF PUBLICITY AND PRIVACY § 8.16 (1996). Other doctrines of state law protect against interference with privacy rights and misappropriation of identity. 1 id. at § 4.14; Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).

State laws have effect only within their own territories, and as a general matter do not apply to acts within other states. As a result, if a right holder believes that his or her rights have been violated in more than one state, separate actions in each state might be required. This is consistent with the TRIPS Agreement, which permits rights to be granted on a state-by-state basis, in addition to on a national level. These state laws provide non-musical performers with rights in their live performances consistent with Article 14.1 of the TRIPS Agreement, without regard to the nationality or domicile of the performer. See, e.g., Mass. Ann. Laws ch. 266, § 143B; N.Y. Arts & Cult. Aff. Law § 31.01; N.Y. Penal Law §§275.00 - 275.45; Tex. Bus. & Com. Code § 35.93; Cal. Civ. Code § 980; Ill. Code Ann. ch. 720-5-16-7 to 16-8; D.C. Code Ann. § 22-3814. The new federal anti-bootlegging legislation imposes no limits on its application to live performances that occurred before it came into effect.

As required by TRIPS Article 10.1, US law treats computer programmes as literary works. See definitions of "computer programme" and "literary work", 17 U.S.C. § 101. Under the Copyright Act, the scope of protection for literary works, like all copyrighted works, is circumscribed by what is known as the "idea/expression dichotomy", codified in Section 102(b), which states: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Thus, a court examining the scope of copyright in an infringement suit must distinguish between those elements of the work that constitute idea and those elements that constitute expression. The TRIPS Agreement incorporates the same concept in Article 9.2, limiting copyright protection "to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such". The line between idea and expression is often difficult to draw, under the law of the United States or any other country. In the case of computer programmes, US courts have had to do so just as for any other type of literary work. A small number of courts have drawn the line to exclude certain menu hierarchies from protection as "methods of operation" under Section 102(b). While the US government does not necessarily take the position that this result is correct, it is a defensible judgment. In reviewing the issue several months ago, the Supreme Court was equally divided and therefore did not issue an opinion. Lotus Development Corp. v. Borland, 116 S.Ct. 1062 (1996).

The "notice of intent to enforce" a restored copyright provided for under 17 U.S.C. § 104A(d)(2) is consistent with TRIPS Article 9.1 in conjunction with Articles 5(2) and 18 of the Berne Convention. Under the Uruguay Round Agreements Act of 1994, copyrights in eligible works from other WTO Members were restored automatically as of 1 January 1996, without the need for the right holder to take any action. See 17 U.S.C. § 104A(a)(1)(A). These copyrights are enforceable under US law to the same extent as any existing copyright with regard to future uses of the works, that is, uses initiated after the date of restoration. 17 U.S.C. § 104A(d)(1). The "notices of intent" provided for in the Act do not affect the automatic restoration and continued existence of these copyrights. They relate only to the rights of "reliance parties" those who had invested in the distribution of newly restored works, or in the creation of derivative works based on those works, during the time that the works were in the public domain. Because the Berne Convention allows some flexibility in determining how to implement retroactive grants of protection in dealing with such reliance parties, the notices of intent do not violate the general prohibition against formalities in Article 5(2). Article 18(3) of the Berne Convention states that "the respective countries shall determine, each insofar as it is concerned, the conditions of application of th[e] principle" of retroactivity established in Article 18(1). This paragraph permits limited exceptions to the application of retroactive protection for existing works in situations where a party has relied on the prior absence of protection in investing in the use of the work. See WIPO GUIDE TO THE BERNE CONVENTION ¶ 18.6 (1978); Sam Ricketson, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886 1986, § 12.11 at 674 675 (1987). In enacting the Uruguay Round Agreements Act, Congress availed itself of this flexibility in order to achieve fairness and avoid potential legal problems under our Constitution. It did so by allowing reliance parties certain narrowly circumscribed privileges to continue to make already initiated uses of the restored work. 17 U.S.C. § 104A(d). Except in the case of a derivative work based upon a restored work, the owner of copyright in the restored work was given the ability to cut off these privileges after 12 months by notifying reliance parties of an intent to enforce the newly restored rights. One way this may be done is by filing a "notice of intent" with the Copyright Office within two years of the date of restoration, thereby notifying the entire universe of reliance parties of the copyright owner's claim. The other option does not require any government involvement or the payment of any fee, and is not limited in time: at any time during the life of the copyright, the copyright owner may serve a notice of intent individually on any reliance party. The notice of intent therefore serves as a simple mechanism for making appropriate adjustments in newly restored rights in order to avoid penalizing parties who acted lawfully in the past. In sum, the notice of intent is permissible as a reasonable condition of application of the principle of retroactivity under Article 18(3).

The 12 month grace period provided to reliance parties under 17 U.S.C. § 104A(d)(2) is consistent with the obligation in TRIPS Article 70 to provide copyright protection for existing works consistent with Article 18(1) of the Berne Convention. Article 18(3) of the Berne Convention states that "the respective countries shall determine, each insofar as it is concerned, the conditions of application of th[e] principle" of retroactivity established in Article 18(1). This paragraph permits limited exceptions to the application of retroactive protection for existing works in situations where a party has relied on the prior absence of protection in investing in the use of the work. See WIPO GUIDE TO THE BERNE CONVENTION ¶ 18.6 (1978); Sam Ricketson, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886 1986, § 12.11 at 674 675 (1987). In enacting the Uruguay Round Agreements Act, Congress availed itself of this flexibility in order to achieve fairness and avoid potential legal problems under our Constitution. It did so by allowing reliance parties certain narrowly circumscribed privileges to continue to make already-initiated uses of the restored work. 17 U.S.C. § 104A(d). These privileges include a 12 month grace period after notification by the copyright owner of an intent to enforce the restored copyright. This limited grace period is permissible as a reasonable condition of application of the principle of retroactivity under Article 18(3).

With respect to the meaning of "reliance party" under US law, we refer the European Community to Section 104A(h)(4) of our Copyright Act, which contains such a definition. This provision has not yet been applied or interpreted by the US federal courts. Similarly, the narrowly circumscribed privileges given to reliance parties in respect of restored works are set out in Section 104A(d)(2) of the Copyright Act. That provision indicates the remedies available against reliance parties and thus necessarily defines the scope of the permissible acts they can undertake with respect to such works. A reliance party can use a restored work in only a narrowly prescribed manner until the copyright owner serves or files a notice of intent. First, reliance party status must be established for each individual work. Second, a party must have been engaged in an ongoing series of acts; cessation of those acts for an appreciable amount of time will deprive him of reliance party status. 140 Cong. Rec. E2264 (8 October 1994). Third, a party's reliance party status extends only to the same type of acts he had already been engaged in with respect to the restored work; it will not extend to new types of acts. Finally, copyright owners can take action at any time during the copyright term to enforce their rights; all privileges of reliance parties then end after a 12-month grace period expires.

The limited exception provided to reliance parties who own derivative works based on restored works that were created before the date of restoration is consistent with TRIPS Article 9.1, which incorporates the exclusive rights provisions of the Berne Convention. Article 18(3) of the Berne Convention states that "the respective countries shall determine, each insofar as it is concerned, the conditions of application of th[e] principle" of retroactivity established in Article 18(1). This paragraph permits limited exceptions to the application of retroactive protection for existing works in situations where a party has relied on the prior absence of protection in investing in the use of the work. See WIPO GUIDE TO THE BERNE CONVENTION ¶ 18.6 (1978); Sam Ricketson, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886 1986, § 12.11 at 674 675 (1987). In enacting the Uruguay Round Agreements Act, Congress availed itself of this flexibility in order to achieve fairness and avoid potential legal problems under our Constitution. It did so by allowing reliance parties certain narrowly circumscribed privileges to continue to make already-initiated uses of the restored work. 17 U.S.C. § 104A(d). These privileges include the ability of owners of derivative works based on restored works that were created before the date of restoration to continue to exploit the derivative works upon payment of reasonable compensation to the owner of copyright in the restored work. This limited exception ensures that authors of new creative material are not barred from exploiting it because of a change in the legal status of the prior works, and is permissible as a reasonable condition of application of the principle of retroactivity under Article 18(3).

The term of protection for a restored work under 17 U.S.C. § 104A(a)(1)(B) is consistent with the requirements of the Berne Convention as incorporated into TRIPS through Article 9.1. Under US law, restored works are treated in the same way as works that were always entitled to copyright protection, giving them the same term of protection as they would have had if they had not entered the public domain. The term granted such works is equivalent to, and sometimes in excess of, the term required by the TRIPS Agreement through its incorporation of Article 7(1) of the Berne Convention. See response to question 10 below.

The limitation of the definition of "restored work" in 17 U.S.C. § 104A(h)(6)(D) to those "first published in an eligible country and not published in the United States during the 30 day period following publication in such eligible country" is consistent with the obligation in TRIPS Article 70 to provide copyright protection for existing works consistent with Berne Article 18(1). The United States' obligations under the TRIPS Agreement extend to works from other World Trade Organization Member countries, not to US works. In implementing the Article 70 obligation to protect existing works a major change in US law, taking many works from around the world out of the public domain Congress decided not to restore protection to US works. This decision required a definition of what constitutes a US work for purposes of copyright restoration. The definition that was adopted constitutes a reasonable and appropriate solution, drawing on the Berne Convention concept of "simultaneous publication". See Berne Convention, Article 3(4). If a work was published in the United States within 30 days of its first publication abroad, it is considered to have been published simultaneously in both countries, and therefore may be regarded as a US work.

Berne Article 5(4)(b) defines "country of origin" only for purposes of the use of that term in applying the Berne Convention, and relates only to works published simultaneously in a country outside the Union. The TRIPS Agreement does not contain the concept of "country of origin." As stated in our original answer to this question, the definition of works subject to retroactive protection under US law is necessary and reasonable.

TRIPS Article 11 excepts Member countries from the obligation to provide rental rights for cinematographic works "unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction". Because of the structure of the current rental market for cinematographic works in the United States, and the current state of reproduction technology, the lack of a rental right does not appear to be causing any material impairment of the reproduction right. The US motion picture industry has indicated to us that this is the case, and we have no evidence to the contrary.

In the event that authors from any WTO Member produce evidence of widespread copying of cinematographic works in the United States, we would expect that evidence to be considered by our Congress, along with any other available evidence on this issue. If we become convinced that widespread copying is, in fact, taking place in the United States as the result of the lack of a rental right, we would advise Congress that it would be appropriate to provide such a right to cinematographic works. At this point, however, there is no such evidence, and therefore a rental right in these works is not required in the United States.

The term of protection for copyrights under US law is consistent with TRIPS Article 9.1, incorporating the term of protection set forth in Article 7(1) of the Berne Convention. Since the current US Copyright Act became effective on 1 January 1978, the standard term of copyright protection in the United States has been measured by the life of the author plus 50 years. 17 U.S.C. § 302. An exception was made for copyrights that were already in existence on that date, which ordinarily enjoy a term of 75 years from the date of publication. 17 U.S.C. § 304. The 75 year term, now granted to these older works without the need to file a renewal application, represents a substantial increase from the prior maximum term of 56 years. The term of 75 years from publication is a general approximation of the term of life of the author plus 50 years, given an initial yardstick of publication rather than the author's life. In many cases it will be longer whenever the author dies less than 25 years after publication.

As we stated in our original responses to these questions, the United States believes that the term granted under US law is equivalent to and consistent with the term required under TRIPS and Berne.

Section 110(5) of the Copyright Act is known as the "homestyle exemption". It allows a corner store to turn on a radio on the counter, and clearly falls within the type of exceptions to rights permitted under TRIPS Article 13. The exception is significantly limited in terms of the statutory language, the way in which Congress intended it to be applied, and the way in which courts have actually applied it. The statutory language establishing the exemption is narrow in scope. The exemption is limited as to the type of equipment permitted - it must be a "single receiving apparatus of a kind commonly used in private homes". The exemption applies only to the communication of transmissions. The exemption is available only if the person playing the radio or other device does not impose a charge to see or hear the transmission. Finally, no further transmission to the public is permitted. Congress intended the scope of this provision to be very narrow. This Congressional intent is reflected in the legislative history, which states that the provision is meant to cover only transmissions of broadcasts and applies only to small commercial establishments: The clause would exempt small commercial establishments whose proprietors merely bring onto their premises standard radio or television equipment and turn it on for their customers' enjoyment, but it would impose liability where the proprietor has a commercial "sound system" installed or converts a standard home receiving apparatus into the equivalent of a commercial sound system. H.R. Rep. No. 1476, 94th Cong., 2d Sess. 87 (1976). The courts have also interpreted the provision narrowly: if the receiving equipment and loudspeakers are too sophisticated or powerful, the exemption does not apply. See, e.g., Sailor Music v. The Gap Stores, Inc., 516 F. Supp. 923 (S.D.N.Y.), aff'd, 668 F.2d 84 (2d Cir. 1981), cert. denied, 456 U.S. 945 (1982).

The bills that would amend Section 110(5) are H.R. 789, S. 1619, and S. 1628. H.R. 789, 104th Cong., 1st Sess. (1995); S. 1619, 104th Cong., 2d Sess. (1996), S. 1628, 104th Cong., 2d Sess. (1996). No hearings have been held on any of these bills, and their future remains unclear at the present time. The discussions concerning these issues are ongoing, and proceed with the United States' international obligations in mind.

There are several compulsory licenses in US law, all of which are permissible under Berne as incorporated into TRIPS. Section 115 contains a compulsory license, permitted under Berne Article 13(1), for the production and distribution of phonorecords of a nondramatic musical work. This license is available only after the owner of copyright has first authorized the distribution of phonorecords embodying the work. Sections 111 and 119 contain compulsory licenses for secondary transmissions by cable and satellite, which are permitted under Berne Article 11bis(2). Section 118 contains a compulsory license for the use of certain works in connection with noncommercial broadcasting, and is permitted under Berne Articles 11bis and 9(2). Section 116 is not a compulsory license. Rather, it allows negotiated licenses for public performances by means of coin-operated phonorecord players, by permitting industry-wide negotiation of agreements without antitrust problems, and by providing the option of using arbitration procedures within the Copyright Office. Since 1989, all licenses under Section 116 have been voluntary negotiated licenses.

We are unable to answer this question as phrased, since we do not understand which case law is referred to by "judicial exemptions prevalent in the US".