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.

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 This Section extends protection to, among other works, all unpublished works without regard to the nationality or domicile of the author, and all published works by nationals or domiciliaries of other countries that are party to a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.

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 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.