New Zealand has not applied, and there are currently no proposals to apply, Section 234(o)(ii) in relation to the authorization of the rental to the public of sound recordings.

Under the Slovenian 1995 Copyright and Related Rights Act (hereinafter referred to as the "Copyright Act"), foreign rightholders of copyright and related rights enjoy the same protection as Slovenian citizens or legal entities, if an international agreement so provides or if other legal grounds exist (see Article 176(2)). It should also be noted that Article 8 of the Constitution of the Republic of Slovenia provides for direct applicability of ratified and published international agreements. These provisions obviously cover the TRIPS Agreement, the Berne Convention (1971) and the Rome Convention, to which Slovenia is a party. Consequently, the protection of works, performances and phonograms from other WTO Members, based on the principle of national treatment, is fully implemented in Slovenian law. While provisions on levies for private copying will become applicable in two years after the coming into force of the Copyright Act (i.e. 29 April 1997, see Article 187(1)), national treatment will be afforded to rightholders from WTO Members on the basis of TRIPS.

In conformity with TRIPS Article 14.5 the term of protection under the Slovenian Copyright Act is 50 years for both performers and producers of phonograms, computed as defined in Articles 127 and 132 of the Copyright Act. The "rule of the shorter term", as provided for in Article 181 of the Copyright Act, does not apply to WTO Members. In fact, this rule seems to be irrelevant whenever the requirements of TRIPS Article 14.5 are met.

The Slovenian Copyright Act provides an exclusive right for the producer of phonograms to reproduce his phonograms (see Article 129.1). This right covers both direct and indirect reproductions, including those made from a broadcast. The Copyright Act has a broad definition of the right of reproduction, which expressly includes also the saving in electronic form (see Article 23(2)). This definition applies also to related rights (see Article 4(2)). The protection of phonograms in the context of digital transmission and interactive services is presently under discussion in the framework of a possible new Instrument of protection within WIPO.

In accordance with Article 18 of the Berne Convention, the 1995 Copyright Act provides full retroactive protection for works, performances and phonograms from other WTO Members (see Article 193(1) and (2)). Works: The 70 year term of protection extends to works that were enjoying protection under the former copyright legislation. Thus the present retroactive protection applies to works, the author of which has died in 1925 or later, provided that they have not fallen in the public domain before 1995 (the year of the entry into force of the Copyright Act) under the former 50 year term. Performances: The 50 year term of protection extends to performances that were enjoying protection under the former copyright legislation. Thus, the present retroactive protection applies to performances, which were fixed, performed or broadcast in 1990 or later. Phonograms: The 50 year term of protection extends to phonograms, which were first fixed in 1975 or later.

The application of the Swedish Copyright Act to works, phonograms and performances originating in other WTO countries flows from Articles 18 and 19 of the International Copyright Regulation (general application of the principle of national treatment in respect of authors' rights) and Articles 20 to 22 (application, in respect of performers, producers of phonograms and broadcasting organizations, of the principle of national treatment as regards those rights which are covered by the TRIPS Agreement). Those Articles seem to be self explanatory. There are presently no provisions in the Copyright Act on levies for private copying.

No provisions exist concerning "comparison of terms" as regards performers and phonogram producers in relation to States Members of WTO.

According to Article 46 of the Copyright Act "a phonographic record, a film or another material support on which sounds or moving images have been recorded may not without the authorization of the producer be reproduced or made available to the public until fifty years have elapsed from the year in which the recording was made, or, if the recording was published or made public within fifty years from the recording, after the year in which the recording was first published or made public. As a reproduction shall also be considered the transfer of the recording from one such support to another". From this follows that the protection applies also to all forms of indirect reproduction including where a copy is made on the basis of a broadcast or other transmission.

Article 24 of the International Copyright Regulation provides: "The provisions of sections 2 to 11, 18 and 19 apply also to works which have been created before the date on which the country became a member of the Berne Union, party to the Universal Copyright Convention or adhered to the World Trade Organization." (The rest of the Article contains special provisions concerning copies of works which have been produced before the date in question, etc). Furthermore, Article 25 of the same Regulation provides that: "The provisions of section 24 shall apply also to rights protected on the basis of sections 5, 10, 13 to 17 and 19 to 23." From these provisions follow that, as a matter of principle, the protection for works, performances and phonograms etc. originating in a WTO Member State applies in all cases where, on 1 January 1996, 50 years had not elapsed from the death of the author, or the recording was made, respectively.

The various remedies available for infringement for copyright infringements will be described in detail in the Checklist of Issues relating to Enforcement.

Data bases which constitute intellectual creations are protected as literary works under the Copyright Act and are consequently protected also if they originate in another WTO country. Quite a different matter is the protection provided for in Article 49 for catalogues, tables or other similar productions in which a large number of information items have been compiled. Those may not be reproduced without the authorization of the producer until ten years have elapsed from the year in which the production was published. This is a "related right", that is a protection outside copyright which operates for the benefit of the producer and has its main function in case such a compilation (also in the form of a database) does not meet the criteria for copyright protection. However, the provisions also state that if a production of this kind, or a part thereof, is subject to copyright, also copyright protection may be claimed. If such a catalogue reaches the level of creativity that is needed for protection under copyright, also this protection will apply, maybe for the benefit of the author (who may not necessarily be the same as the producer).

Article 51 of the Copyright Act deals with what may be referred to as an extended protection of the moral rights in classical works. It aims at preventing such exploitation of works (mainly such where the term of protection has expired) which would imply a grave prejudice to the moral or aesthetic value of classical work. It is unimaginable that such an exploitation would constitute (under the terms of Article 13 of the TRIPS Agreement) a normal exploitation of the work and whose prevention would unreasonably prejudice the legitimate interests of the rightholder. It should be added that the provision has never been used in practice.

As already indicated in the reply, the aim of the provision is to protect primarily works forming part of the national cultural heritage against acts of exploitation which would cause grave prejudice to the aesthetic or cultural value of such works. Those acts are such which violate what is in an untranslatable Swedish expression referred to as "den andliga odlingens intressen" (roughly corresponding to "vital cultural interests of a general nature"). The sanction is that the Court may, upon action brought by any of the Swedish Academies (the Swedish Academy, etc.) prohibit the exploitation on penalty of a fine. More information cannot be given in view of the fact that the provision which has existed already before the present law of 1960 has never been used.

In the United States' written responses to the first set of questions posed by the European Commission, we explained why the doctrine of fair use complies with Berne Article 9(2) and TRIPS Article 13. Please see our answer to the Commission's question 1. As to the two cases referred to in Australia's question: In Sega Enterprises v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992), the court applied the doctrine of fair use to the specific facts of the case before it. As explained in our discussion of fair use generally, courts are required to balance several factors in light of all the facts and circumstances. The Sega court did exactly that. This narrow holding based on the particular facts in the case is a defensible judgement for the purposes of the exceptions permitted under the TRIPS Agreement. The decision in the other case, Princeton Univ. Press v. Michigan Document Servs., 74 F.3d 1512 (6th Cir. 1996), has been vacated. Princeton Univ. Press v. Michigan Document Servs., reh'g en banc granted, vacated, stay granted 74 F.3d 1528 (6th Cir. 1996).

The decision in La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir. 1995), does not effect the ability of the United States to give effect to its obligations under TRIPS Article 14. The decision does not relate to the rights of performers, producers of phonograms, or broadcasting organizations as such. In it, the court held that the distribution of phonorecords before the current Copyright Act became effective in 1978 constituted a publication of the musical works embodied in the phonorecords. Other courts have reached the opposite result. Rosette v. Rainbo Record Mfg. Corp., 354 F.Supp. 1183 (S.D.N.Y. 1973), aff'd per curiam, 546 F.2d 461 (2d Cir. 1976); Capitol Records, Inc. v. Mercury Records Corp., 221 F.2d 657 (2d Cir. 1955). Legislation is currently pending in Congress to clarify the issue. H.R. 1861, 104th Cong., 1st Sess. (1995).

The bill in the House of Representatives clarifying the issues raised in La Cienega Music v. ZZ Top is H.R. 1861. This bill has many parts to it, and the section relevant to this issue is one small part. It would amend Section 303 of the Copyright Act by adding the following language: "The distribution before 1 January 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein." H.R. 1861 was passed in the House on 4 June 1996, and is currently awaiting action in the Senate. We do not know at this time whether the bill will be passed in the Senate without change.

In the United States, copyright in fixed works of authorship is governed exclusively by federal law. Accordingly, the scope of protection for all works of authorship, including musical works and sound recordings, is established by the 1976 Copyright Act. The Act explicitly preempts and renders void any state law that provides equivalent rights in copyrightable subject matter, 17 U.S.C. § 301. In addition, any state law that conflicts with federal law is preempted by virtue of the Supremacy Clause of the Constitution, U.S. Const., art. VI, cl.2. Hines v. Davidowitz, 312 U.S. 52, 67 (1941). The state laws referred to in this question relate to the conduct of the business of collective performing rights societies. To the extent that any of them also affects the scope of copyright protection, or hinders the operation of federal copyright law, it is preempted. See ASCAP v. Pataki, 38 U.S.P.Q.2d 1485 (S.D.N.Y. 1996) (holding that similar New York State legislation was preempted).

US law providing for retransmission of television broadcasts is permissible under Article 11bis(2) of the Berne Convention, as legislation "to determine the conditions under which the rights mentioned in [paragraph(1) of Article 11bis] may be exercised".

The exception in Section 110(3) of our Copyright Act is wholly consistent with the requirements of Article 13 of the TRIPS Agreement. The permitted uses are extremely narrow, and have not been objected to by our right holders. The exception is limited to only a few types of works, only certain uses are permitted, and they are permitted only in the course of religious services, which must take place only in locations used for religious assembly.

Article 13 of the TRIPS Agreement confines exceptions or limitations on rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. Section 110(4)(A), which would for example allow a community choir to sing a choral work for free at an art centre, is limited in various ways that prevent unreasonable prejudice to the interests of the right holder. First, it is limited as to the categories of works and types of uses permitted. In addition, it contains three limitations that make economic detriment to the right holder unlikely: (1) it must be done without any purpose of direct or indirect commercial advantage; (2) there must be no payment of any fee or other compensation to any of the performers, promoters or organizers; and (3) there must be no direct or indirect admission charge. Furthermore, the exemption does not apply if the copyright owner objects in writing.