Sections 106 and 109 of the Copyright Act give right holders in sound recordings the ability to control the rental of the sound recordings. As an owner of copyright, the producer is therefore granted the ability to control the rental of the sound recording, in accordance with Article 14.4 of the TRIPS Agreement.

As noted with respect to question 1, Sections 106 and 109 of the Copyright Act grant right holders in sound recordings the ability to control the rental of the sound recordings. Since under US law, performers can be authors and copyright owners of sound recordings, they can control their rental, in accordance with Article 14.4 of the TRIPS Agreement.

The United States has fully implemented Article 14.1 of the TRIPS Agreement. Although rights already existed under US state law, the United States established a federal right to control the unauthorized fixation of live performances, the unauthorized reproduction of such fixations, and the unauthorized broadcast of live performances. Both civil remedies and criminal sanctions are provided for violation of these rights. Performers from all WTO countries are granted rights under these provisions, which they can enforce in US courts on a national treatment basis.

The United States provides national treatment for works from other WTO Members through Section 104 of the Copyright Act. This Section extends protection to, among other works, all unpublished works without regard to the nationality or domicile of the author, and all published works by nationals or domiciliaries of other countries that are party to a copyright treaty with the United States. Since phonograms are works of authorship protected by copyright under US law (see 17 U.S.C. § 102(7)), they are covered by Section 104 as well. Section 104(c) of the Copyright Act is not an exception to national treatment. It simply sets forth the proposition that the Berne Convention is not self-executing in the United States, and that rights are conferred solely by the provisions of domestic law. This reflects the standard treatment of the implementation of international treaties in the US legal system. As to performers, under US law they may be joint authors of phonograms, and are therefore entitled to the rights of a copyright owner, granted on the basis of national treatment as described above. They are also protected by state laws as described in our response to question 2 and its follow-up from the European Communities and their Member States. Our additional obligations under TRIPS Article 14 were met by enactment in 1994 of a new Section 1101 in Title 17. This Section provides full national treatment, as it contains no limitations on the nationality of the performers who qualify for protection or the location where the performance took place. It explicitly states that any distribution of an unauthorized fixation is actionable "regardless of whether the fixations occurred in the United States". 17 U.S.C. § 1101(a)(3).

Section 301(e) simply confirms that the relationship between US state and federal law has not been changed by US adherence to the Berne Convention.

Under US law, compilations of data that constitute original works of authorship are protected as literary works. See 17 U.S.C. § 101 (definitions of "compilation" and "literary work"); § 102 (subject matter of copyright generally); § 103 (existence and scope of copyright in compilations).

Computer programmes are treated as literary works under the US Copyright Act. This is made clear by the definition of "literary works" as "works . . . expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, films, tapes, disks, or cards, in which they are embodied". 17 U.S.C. § 101. See also definition of "computer programme." Legislative history and case law explicitly confirms this. See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 54 (1976); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1249 (3d Cir. 1983). The definition of "computer programme" in Section 101 is not restricted to any particular language or form of the "set of statements or instructions". Case law has made clear that copyright protection extends to computer programmes in both source code and object code form. See, e.g., Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1249 (3d Cir. 1983).

The United States provides certain aspects of broadcasting rights under various laws, including the Copyright Act. In the language of TRIPS Article 14.3, the United States also "provides owners of copyright in the subject matter of the broadcasts with the possibility of preventing" all of the acts listed in that Article.

The United States does not grant rights to broadcasting organizations per se, although the Communications Act of 1934 does grant a right of civil action for unauthorized reception of certain communications. 47 U.S.C. § 605. The United States provides the alternative expressly permitted under TRIPS Article 14.3, which states that "[w]here Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971)". The rights referred to are the rights to prohibit unauthorized fixation, reproduction of fixations, rebroadcasting by wireless means of broadcasts and communication to the public of television broadcasts. US copyright law protects the subject matter of broadcasts. See 17 U.S.C. §§ 101 (including definitions of "fixed", "audiovisual works"), 102(a). This protection includes rights to prevent unauthorized reproduction, distribution, public display and public performance. 17 U.S.C. § 106. These exclusive rights provide copyright owners with the possibility of preventing the acts listed in TRIPS Article 14.3. In addition to this protection for owners of copyright in the subject matter of broadcasts, broadcasters may also own copyright in the compilation of works that constitutes a broadcast day, provided that there is sufficient authorship in that compilation. As owner of copyright in the broadcast day, a broadcaster may exercise the same exclusive rights with respect to that compilation that the owners of copyright in the subject matter of the broadcast may exercise with respect to their contributions.

The US Copyright Act contains a number of detailed, specific limitations on exclusive rights, set forth in Sections 107 through 120. We believe that each of them is consistent with TRIPS Article 13, in that they do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interest of the right holder. In particular, each of the compulsory licenses that exists in US law, including provisions as to royalty fees, is permissible under Berne as incorporated in TRIPS.

No, this conclusion cannot be drawn from the information provided by the United States in response to India's question 6. Copyrights and patents are granted under wholly distinct régimes, and the exceptions that may be permitted under one régime do not relate to those that may be permitted under the other.

See our answer to question 1. US law is in compliance with TRIPS Article 14, and grants to performers all of the rights required by Article 14.1. The federal statute does not provide any limitations on these rights, and does not impose any limit on the duration of protection.

Section 1101 on its face provides perpetual protection to performers. Of course, the scope of the section will ultimately be determined by the federal courts. No limitations and exceptions are found in the language of Section 1101, and no court has yet interpreted it to contain any. Congress did, however, contemplate that there might be exceptions in cases where First Amendment free speech principles are implicated, such as where small portions of an unauthorized fixation are used without permission in a news broadcast or for other purposes of comment or criticism. Message of the President of the United States Transmitting the Uruguay Round Trade Agreements, Texts of the Agreements Implementing Bill, Statement of Administrative Action and required Supporting Statements, H.R. Doc. No. 316, 103d Cong., 2d Sess. 991 (27 September 1994).

All of the laws mentioned in this question were amendments to the US Copyright Act, are now codified in Title 17 of the US Code, and were incorporated in the notification made by the United States to the TRIPS Council on 25 March 1996. See WTO document IP/N/1/USA/C/1.

In light of the fact that the term of protection provided to works subject to our retroactive copyright provisions is equivalent to and consistent with that required by the TRIPS Agreement and the Berne Convention, the United States does not consider it necessary to avail itself of the "conditions of application" provision in Article 18(3) of Berne. Our answer does not imply in any way that Berne Article 18(3) could be used to justify material limitations on the application of the retroactive protection requirements in the TRIPS Agreement.

It is important to understand that the purposes listed in the first sentence of Section 107, which include teaching, scholarship, or research, do not automatically qualify a use as a fair use, but are simply examples of the types of purposes that are likely to qualify as fair. See Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1374 (2d Cir. 1993). Each use must still be examined in light of the four statutory factors found in Section 107. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 127 L. Ed. 2d 500, 514-515 (1994). Accordingly, extensive multiple copying for the purposes of teaching has been held to fall outside the scope of the fair use doctrine and to constitute an infringement of copyright in the works copied. See Basic Books, Inc. v. Kinko's Graphic Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991), noted in our original answer to the question from the European Communities. Guidelines as to the permissible amount and timing of such copying, negotiated by the educational and publishing sectors, are set out in the legislative history to the Copyright Act. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 68-70 (1976). Additionally, a leading case held that the copying of journal articles by a commercial researcher did not qualify as fair use. See American Geophysical Union v. Texaco, Inc., 37 F.3d 881 (2d Cir. 1994), noted in our original answer to the question from the European Communities. Finally, the label of "scholarship" in itself will not resolve the fair use issue, and there is no established definition of the term. If a particular use is designed to advance knowledge, this should be an aspect of the purpose and character of the use that weighs in favour of a fair use determination.

The filing of a notice under Section 115 of the Copyright Act permits the notifying party to make another recording of the nondramatic musical work and to distribute that recording, assuming that the limitations on the use of this provision set out in Section 115(a) have been complied with. The ability to take advantage of this provision is subject to the payment of a fee to the right holder in the underlying work for each recording of the work that is made. No criteria are imposed beyond those set out in the statute.

Section 111 of the Copyright Act governs secondary transmissions by cable systems. It contains a compulsory license that mandates the payment of royalties for most such retransmissions. 17 U.S.C. §111 (c)-(d). This remuneration is distributed to right holders through their filing of a claim for a share of such fees with the Librarian of Congress. 17 U.S.C. §111(d)(3)-(4). Any copyright owner whose work is included in the secondary transmission is entitled to file such a claim; the law does not distinguish between foreign and domestic right holders.

While we are not sure which proposed legislation this question addresses, several bills are currently pending in Congress which concern public performance of musical works, including their broadcast. H.R. 789, 104th Cong., 1st Sess. (1995); S. 1619, 104th Cong., 2d Sess. (1996); S. 1628, 104th Cong., 2d Sess. (1996). Discussions are proceeding with our international obligations in mind. No hearings have been held yet, and the future of the bills is unclear.

The Belgian Law of 30 June 1994 on Copyright and Neighbouring Rights provides for protection of performers, producers of phonograms and broadcasting organizations that it is in conformity with Article 14 of the TRIPS Agreement. The relevant provisions are set out in Articles 33 to 47 of the Law.