U.S.

Copyright and the TRIPS Agreement 1

Running head: US COPYRIGHT AND THE TRIPS AGREEMENT

US COPYRIGHT AND THE AGREEMENT ON TRADE RELATED ASPECTS OF

INTELLECTUAL PROPERTY RIGHTS (TRIPS)

Did the implementation of the Trade Related Aspects of Intellectual Property Rights
Agreement (TRIPS) in the WTO provide remedy for the deficiencies of the Copyright Act
of 1976 in the United States?

International Monetary and Development Law

Elisa Barrios
Claudia Mendoza
Stephanie Zambrana

Ave Maria University

San Marcos, Carazo-Nicaragua
 U.S. Copyright and the TRIPS Agreement 2

TABLE  OF  CONTENTS  

TABLE  OF  CONTENTS   2  

ABSTRACT   3  

INTRODUCTION   4  
BACKGROUND  OF  TRIPS   4  
BACKGROUND  OF  US  COPYRIGHT  LAW   4  

DEFICIENCIES  OF  THE  1976  US  COPYRIGHT  ACT   5  

LACK  OF  EXTRATERRITORIAL  EFFECT   5  
UNPROTECTED  COMPUTER  PROGRAM   6  
TOLERANCE  FOR  BOOTLEGGING  OF  LIVE  PERFORMANCES   7  

REMEDIES  PROVIDED  BY  TRIPS   8  

INCORPORATION  OF  EXTRATERRITORIAL  EFFECT   8  
ELIMINATION  OF  EXPIRATION  DATE  FOR  COMPUTER  PROGRAM   9  
CRIMINAL  REMEDIES  FOR  BOOTLEGGING  OF  LIVE  PERFORMANCES   10  

ANALYSIS   11  
CONSOLIDATE  EXTRATERRITORIAL  EFFECT   11  
WAS  THERE  A  CHANGE?   11  
IF  SO,  HOW?  WHY?   11  
TYPE  OF  CHANGE   11  
RAMIFICATIONS   12  
ADVANTAGES   12  
OTHER  PROPOSALS  AND  RECOMMENDATIONS   13  
DISADVANTAGES   13  
RECOMMENDATIONS   13  
COMPUTER  PROGRAM  RENTAL  PROVISION   13  
WAS  THERE  A  CHANGE?  IF  SO,  HOW?  WHY?   13  
RAMIFICATIONS   14  
OTHER  PROPOSALS  AND  RECOMMENDATIONS   14  
ADVANTAGES   14  
DISADVANTAGES   14  
RECOMMENDATIONS   15  
BANNING  BOOTLEGGING  OF  LIVE  PERFORMANCE   15  
WAS  THERE  A  CHANGE?    IF  SO,  HOW?  WHY?   15  
TYPE  OF  CHANGE   15  
RAMIFICATIONS   15  
OTHER  PROPOSALS  AND  IMPROVEMENTS   16  
ADVANTAGES   16  
DISADVANTAGES   16  
RECOMMENDATIONS   16  

CONCLUSION   17  

REFERENCE  LIST   18  
 U.S. Copyright and the TRIPS Agreement 3

ABSTRACT  
The world standards for copyrights established by the Agreement on Trade-Related

Intellectual Property Rights (TRIPS) have had a strong impact on domestic copyright law

around the world since its implementation in 1994 (Copyrights Office, n.d.). Despite the

evolutionary history of copyright laws in the United States, the 1976 Copyright Act had

three major gaps in the US code, mainly technological and territorial (Ibid, n.d.). This

paper will analyze the approval of TRIPS by the United States and the deficiencies

concerning extraterritorial effect, the unprotected computer programs, and, finally, the

violation of bootlegging sound recording of live musical performances (Ibid, n.d.).

 U.S. Copyright and the TRIPS Agreement 4

INTRODUCTION  
Background  of  TRIPS  
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS),

was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and

Trade (GATT) in 1994 (WTO, n.d.). Its inclusion was the culmination of a program of

intense lobbying by the United States, supported by the European Union, Japan and other

developed nations (WTO, n.d.). After the Uruguay round, the GATT became the basis for

the establishment of the World Trade Organization (WTO, n.d.). Because ratification of

TRIPS is a compulsory requirement of World Trade Organization (WTO) membership,

any country seeking to obtain easy access to the numerous international markets opened

by the WTO must enact the strict intellectual property laws mandated by TRIPS (WTO,

n.d.) Also, TRIPS contains requirements that countries should include in their domestic

copyright laws including the rights of performers, producers of sound recordings and

broadcasting organizations; geographical indications, including appellations of origin;

industrial designs; integrated circuit layout-designs; patents; monopolies for the

developers of new plant varieties; trademarks; trade dress; and undisclosed or confidential

information (WTO, n.d.) Therefore, TRIPS is the most important multilateral instrument

for the globalization of intellectual property laws. Furthermore, unlike other agreements

on intellectual property, TRIPS has a powerful enforcement mechanism in which States

can be disciplined through the WTO's Dispute Settlement Mechanism (WTO, n.d.).

Background  of  US  Copyright  Law  

The 1976 Act is a revision made to the Copyright Act of 1909, it created a

Copyright Office and a Revision Coordinating Committee (Library of Congress, 1977). It

was mainly a reflection to the changes in “technology, commercial and financial interest,

political and social conditions, judicial and administrative developments” (Ibid, 1977).

The Act provided for the protection of works and established a single system under
 U.S. Copyright and the TRIPS Agreement 5

common law subject to federal protection (Ibid, 1977). It was implemented under the basis

that it would stimulate national uniformity, reduce the legal significance of publication,

provide for time limits for exclusive rights, and most importantly, it would improve

international dealings in copyrighted works (Ibid, 1977).

DEFICIENCIES  OF  THE  1976  US  COPYRIGHT  ACT  

Lack  of  Extraterritorial  Effect  

One of the main deficiencies of domestic laws is the lack of extraterritorial effect

when an infringement takes place outside territorial boundaries. The 1976 Copyright Act

contains a significant gap that has affected the outcomes of landmark cases in the field of

copyright protection. The only section of the Act that extends outside territorial

boundaries is section 6021, which covers the infringing importation of copies or

phonorecords (Copyright Act, 1976). The main issue under the copyright Act of 1976 is

when the infringing conduct consists solely on the authorization within the territorial

boundaries of the United States of acts that occur entirely abroad (Partridge, 2009).

Herein lies the question of extraterritoriality of the US Copyright Act. In Subafilms,

Ltd. v. MGM-Pathe Communications Co., (9th Cir. 1994) the court held that authorizing

acts of infringement were not cognizable under U.S. copyright laws, because they occurred

entirely outside the United States, hence there was no claim for infringement under the

Copyright Act (ibid, 1994). The court based its holding on The U.S. Supreme Court

longstanding principle of American Law stating that legislation of Congress, unless a

contrary intent appears, is meant to apply only within the territorial jurisdiction of the

United States (Thornburg, 2005), and § 411(1)(a-d) of the Copyright Act, specifying

copyright protection of ‘United States work’ within the United States. Copyright owners

1
Section 602(a) Importation into the United States, without the authority of the owner of copyright under this title, of
copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive
right to distribute copies or phonorecords under section 106 [17 USC 106], actionable under section 501 [17 USC 501].
 U.S. Copyright and the TRIPS Agreement 6

are particularly susceptible to infringement through the Internet because of the ease with

which copyrighted material can be copied and widely disseminated over the web.

However, U.S copyright law in the cyberspace is limited to cases when the infringer

violates the law within U.S boundaries (Crews, 2001). Thus, the conventional rule under

choice of law has been that U.S. copyright law may only apply if there is a specific step or

action within the United States affecting or causing a foreign infringement, traditionally

actionable under the Copyright Act. In all other circumstances the US copyright Act lacks

extraterritorial effect when injuries to ‘United State works’ are performed abroad.

Unprotected  Computer  Program  

The Act covered many aspects of intellectual property, but still did not provide for

software protection on the list of protected works under Article 102(a)2 (Elsevier, 2007).

The Act provided specific time frames under three categories to which copyright could be

granted: Basic Term, Joint Works, Anonymous and Pseudonymous Works (Library of

Congress, 1977). Section 302 states that Basic Term is referred as the life of the author

and fifty years after his death, Joint Works were granted fifty years from the date of death

of the last surviving author; and Anonymous Works seventy-five years were granted since

its publication or a hundred since its creation (Ibid, 1997). However, computer programs

did not fall under the established definition, in ProCD, Inc. v. Zeindenberg, it was

concluded that federal law did not provide protection for databases nor conferred

reproduction and its distribution; it was a matter of state law (Bauer, 2007). Yet, the

judiciary in numerous lower court cases recognized the need for a framework protecting

computer programs (Elsevier, 2007). The first case, Synercom Technology v. University

2
Section 102 provides seven categories listed as Literary works; musical works,
including any accompanying words; dramatic works; including any accompanying music;
pantomimes and choreographic works; motion pictures and other audiovisual works; and
sound recordings.
 U.S. Copyright and the TRIPS Agreement 7

Computing In which the court decided that software were protected, only if they were

identified as a work that needed the assistance of an instrument to be discerned, yet, it was

not guaranteed (ibid, 2007). In a second case, Data Cash Systems v. JS. & A, it was

identified that software were in the form of a flow diagram, under the rationale that those

were visually detectable, meaning that the non-visible were not protected (Ibid, 2007).

Finally, in Tandy v. Personal Micro Computers, it was decided that software, as protected,

were not defined only as tangible mediums of expression in a ROM, but could be in form

of information databases (Ibid, 2007). Hence, the cases made a clear differentiation

between computer components and computer programs under the general rules of

intellectual property in the Act, but none of them analyzed the possible effects of the

existent time frames, nor provided a general uniformity to the concept of software.

 
Tolerance  for  Bootlegging  of  Live  Performances  

Bootlegging recordings and the Protection of Live Performances was a problem of

statutory construction (Fischer, 2003). It was a problem because live performances were

simultaneously recorded while being transmitted. The Copyright Act did not address such

recorded performance as being “fixed”. Fixed refers to modified sound recordings alleged

to be legal falling within the first sentences of the statutory definition of fixation is section

101 of such Act (Ibid, 2003). On the other hand, prior to 1994 and the enactment of the

18th United State Code (U.S.C.) no federal protection existed for the unrecorded live

performance of musicians (BNA, 2006). Federal copyright protection has, however,

existed for musical compositions since 1831 stated in 17th U.S.C providing that musical

works including any accompanying words are protectable subject matter (Martignon,

2004). Still no federal protection extended to unrecorded live performances and the

duplication of such performances (Ibid, 2004). Basically the only protection the

performers had was the Anti-bootlegging clause of the Copyright Act (Ibid, 2004). This
 U.S. Copyright and the TRIPS Agreement 8

apparent gap in copyright protection prompted Congress to enact the anti-bootlegging

statute, a measure that would protect performers from the unauthorized duplication of their

performances (Ibid, 2004).

REMEDIES  PROVIDED  BY  TRIPS  

Incorporation  of  Extraterritorial  Effect  

Despite the Berne Convention’s assertion that all countries should accord national

treatment towards foreign entities seeking copyright protection, TRIPS fails to provide any

guidelines on the issue of choice of law in international copyright disputes (Thornburg,

2005). Even though the U.S. has ratified TRIPS, the Copyright Act of 1976 remains flawed

in theory, however, not completely in practice. U.S Courts are now willing to protect US

competitors against copying in foreign markets- and do not necessarily defer to the

decisions of foreign copyright offices (Barton, 1986). In recent cases, the Second Circuit

and its lower trial courts have greatly expanded the extraterritorial jurisdiction so that it not

only to applies to U.S. domestic copyright law, but also to engage, under choice of law, in

interpreting a foreign country’s copyright laws (Collora, 2000).

There are three cases in U.S. courts that corroborate this remedy. Basically if the

claim states that even only one part of the system takes place outside the United States,

extraterritorial application of the copyright law of the United States is appropriate (Kramer,

1995). In an unprecedented move, the Federal Circuit, in AT&T v. Microsoft Corp, held

that copying in a foreign country of software made in the United States infringed United

States copyright under United States law (White, 2006). Such a holding "provides

extraterritorial expansion to U.S. law by punishing under U.S. law 'copying' that occurs

abroad" (ibid, 2006). In addition, in NFL v. TVRadioNow Corp, (W.D. Pa. 2000), the NFL

sued a Toronto-based communications company, alleging that the company had infringed

on its copyright by capturing signals of copyrighted footage from television stations in this
 U.S. Copyright and the TRIPS Agreement 9

country, converting the signals into computerized data, and "streaming" the data over the

Internet through a web site called "iCraveTV.com"(Collora, 2000).

The Microsystems Software Inc v. Scandinavia Online case, (Mar. 28, 2000) well

defines the outer limits of subject matter jurisdiction in copyright litigation (United States

Court of Appeals For the First Circuit, 2000). Despite the fact that the infringing conduct

alleged by the plaintiff occurred in Canada and Sweden, the court held that subject matter

jurisdiction existed because the defendants promoted their bypass program through e-mail

press releases sent to the United States which encouraged persons to download copies of

the program (ibid, 2000)

Elimination  of  Expiration  Date  for  Computer  Program  

The Berne Convention of 1971, which is now part of the TRIPS Agreement,

created laws that provided the system with higher standards in regards to new technologies

based on information, i.e. computer programs (Karjala, 1988). Although the Berne

Convention was never implemented in the United States, it created an international

Copyright Office where authors of computer programs could register their work, which

would later be used as evidence by attorneys to impose fees and statutory damages (Ladas

& Perry, 2000). The only problem was that U.S authors could not use their registered work

because there was no Act aiming the protection of Computer Software (Ibid, 2000). It was

not until 1980 that the Computer Software Act was enacted (ibid, 2000). Section 117 of the

1976 Act which was eventually repealed added computer programs as intellectual property,

and defined them as "a set of statements or instructions to be used directly or indirectly in a

computer in order to bring about a certain result" (Ibid, 2000). In addition, this facilitated

the implementation of TRIPS in 1994, which was taken as an attempt to “strengthen bonds

concerning the international pirating of intellectual property; the increasing piracy of

computer software was also a cause of concern (Elsevier, 2007). Moreover, Articles 10
 U.S. Copyright and the TRIPS Agreement 10

and 27 of the Agreement provides that software containing readable content or in any other

form, constitute intellectual property. Therefore, patents have to be available to authors for

any invention in all fields of technology without discrimination of any type at national and

international levels3 (TRIPS, 1994). Such provisions reviewed Section 109(b) of the 1976

Act, by identifying the scope and length of software. This section provides ‘that the owner

of a lawfully-made copy can display publicly to viewers present at the same place as the

copy’ (Library of Congress, 1977). In other words, the copy of software could be owned.

However, its public display was limited, and could not be held exclusively to be display

directly or indirectly. This provision was revised in Article 11 of TRIPS, in which

computer programs rental rights are set and identified4 (Ibid, 1977). Furthermore, TRIPS

identifies in Article 13 that there can be an exception. However, such exception should not

damage to the author’s legitimate interest5 (McManis, 1996).

Criminal  Remedies  for  Bootlegging  of  Live  Performances  

The enactment of the anti-bootlegging statute grew out of the Uruguay Round of

trade negotiations under the General Agreement on Tariffs and Trade (Martignon, 2004).

In April 1994, 111 nations signed the Final Act embodying the results of the

Uruguay Round of Multilateral Trade Negotiations, and in so doing adopted the TRIPS

Agreement (Ibid, 2004). Therefore, the United States fulfilled its obligation under TRIPS

3
Article 10 Computer Programs and Compilations of Data. 1.Computer programs, whether in source or
object code, shall be protected as literary works under the Berne Convention (1971). 2. Compilations of data
or other material, whether in machine readable or other form, which by reason of the selection or
arrangement of their contents constitute intellectual creations shall be protected as such. Such protection,
which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in
the data or material itself.
4
Article 11. Rental Rights In respect of at least computer programs and cinematographic works, a Member
shall provide authors and their successors in title the right to authorize or to prohibit the commercial rental to
the public of originals or copies of their copyright works. A Member shall be excepted from this obligation
in respect of cinematographic works unless such rental has led to widespread copying of such works which
is materially impairing the exclusive right of reproduction conferred in that Member on authors and their
successors in title. In respect of computer programs, this obligation does not apply to rentals where the
program itself is not the essential object of the rental.
5
Article 13. Limitations and Exceptions. Members shall confine limitations or exceptions to exclusive 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.
 U.S. Copyright and the TRIPS Agreement 11

by enacting 18th U.S.C. that provides the criminal sanction for bootlegging as follows:

Whoever, for purposes of commercial advantage or private finance gain. Such as fixes,

reproduces, transmits, distributes, sells or offers to rent, and traffics of any copy of sound

or images of a live musical performance, regardless of whether the fixations occurred in

the United States, the infringer shall be imprisoned for not more than 5 years or fined in

the amount set forth in the, or both (Ibid, 2004).

ANALYSIS  
Consolidate  Extraterritorial  Effect  

Was  there  a  Change?  

The extraterritoriality principle of the Copyright Act of 1976 changed in practice

due to the application of the TRIPS agreement in matters of interpretation of law. Even

though the document was not amended and no provision was added to explicitly allow

extraterritorial reach of the Act, Courts began to apply different rationales.  

If  so,  How?  Why?  

The main reason why courts began to summon Article 41.1 of TRIPS in their

interpretation of Law was the occurrence of domestic copyrights infringing behavior

outside of national boundaries. Not only the increased number of cases involving foreign

conduct, but also the frequent intangibility of foreign based infringing elements had made

it more and more difficult to make domestic copyrights reach activities outside their

territorial boundaries without definitely abandoning the territorial confinements of

National infringement laws (Schauwecker, 2008).

Type  of  change

The court’s holdings and findings, based on different rationales that concurred in

the conclusion that "subject matter jurisdiction exists where the infringement has an effect
 U.S. Copyright and the TRIPS Agreement 12

within the United States", and according to Art.41.16 of the TRIPS agreement Members

shall ensure that enforcement procedures are available under their law so as to permit

effective action against any act of infringement of intellectual property rights. By having

infringing acts occurring outside the United States with effects inside the U.S, the

infringement is transmitted to U.S laws where the Copyright Act is implicated, hence

district court possesses jurisdiction. Applying this principle to copyright cases, the court

holds that when a foreign corporation is alleged to have purposefully injected itself into the

American market by shipping infringing goods– regardless of whether it does so directly or

through an importer – the defendant should not be allowed to use the principle of non-

territoriality to shield itself from the reach of American courts and American copyright

law.

Ramifications  
There hasn’t been a concrete change in legislation that focuses on the

extraterritoriality issue, particularly when TRIPS enables by all means the prevention of

infringement through national legislation in Art.41.1. There should be an amendment that

enables extraterritoriality in some cases.

Advantages  
An advantage of incorporating extraterritoriality of copyright laws is that people

will know their works will be protected, so more people would be willing to invest in

research and development because law would allow them to market their works, recoup

their cost, and most importantly protect them beyond U.S boundaries.

6
Art. 41.1(a) Members shall ensure that enforcement procedures as specified in this Part are available under
their law so as to permit effective action against any act of infringement of intellectual property rights
covered by this Agreement, including expeditious remedies to prevent infringements and remedies which
constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to
avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
 U.S. Copyright and the TRIPS Agreement 13

Other  Proposals  and  Recommendations  

Courts have not made any proposals to amend the copyright Act in order for it to

have extraterritorial jurisdiction. As of today, intentions are to pursue the extraterritoriality

of patent law.

Disadvantages    
Having extraterritorial jurisdiction may bring some obstacles along with their

enforcement. For both practical and diplomatic reasons, investigations within another

country require the acquiescence, consent, or preferably the assistance, of the authorities of

the host country (Doyle, 2007). The United States has mutual legal assistance treaties with

several countries designed to formalize such cooperative law enforcement assistance (ibid,

2007). In addition, extraterritoriality brings the question of violation of sovereignty by

extending one nation’s laws to another.  

Recommendations  
Copyrights and patents are both equally threatened by the Internet revolution,

software patents are in contrast to copyrights explicitly protected beyond national

boundaries both in TRIPS and U.S domestic law. If there was a provision in the US

Copyright Act similar to section 271(f) 7 of the US Patent Act specifying the combination

of circumstances in which actions outside the United States are considered infringement to

national law, extraterritoriality issues would become questions of fact, not questions of law

and rulings would require less legal interpretation.

Computer  Program  Rental  Provision  

Was  there  a  change?  If  So,  How?  Why?  

TRIPS changed the 1976 Act in regard to Computer Programs in the sense that by
7
Section 271(f) Whoever without authority supplies or causes to be supplied in or from the United States all
or a substantial portion of the components of a patented invention, where such components are uncombined
in whole or in part, in such manner as to actively induce the combination of such components outside of the
United States in a manner that would infringe the patent if such combination occurred within the United
States, shall be liable as an infringer.
 U.S. Copyright and the TRIPS Agreement 14

the time it was drafted Software did not exist and were not included in it; the 1980 Act

provided for a clear definition and included them. However, TRIPS eliminated the “sunset

date” or expirations imposed to computer program patents and providing for author

exclusive rental rights over software’s (Copyright Office, n.d.) Also, the implementation

of TRIPS provided for an international standard that could be used by US authors in

piracy cases, an international copyright office where programs could be registered, and,

most importantly, the dispute settlement mechanism under GATT.

Ramifications  
After the implementation of the TRIPS Agreement, lower court cases with binding

precedent were not longer source of law.

Other  Proposals  and  Recommendations  

In 2000, a German Federal Patent Court interpret that although Art. 27 of TRIPS

broadly described the scope in which patents are ought to be granted; by stating that these

should be available for inventions in all fields of technology, the specific inclusion of

computer programs would not be then considered an implicit extension (Eupat, 2004).

Advantages  
Although there were pre-existent state laws created by case law, TRIPS promoted

national uniformity to US copyright law. And it created a set of standards and definitions

concerning the time of application and scope of the law regarding software.

Disadvantages  
Article 13 of TRIPS delineates in very general terms the scope of copyright protection, in

regard to computer programs and data compilations, identifying these exceptions were

author’s would loss their exclusive right as subject to the “fair use” its which can be hard

to demonstrate (McManis, 1996).

 U.S. Copyright and the TRIPS Agreement 15

Recommendations  
Article 13 of TRIPS is too broad, in the sense that other members can impose

limitations, as long as such limitations do not conflict the "normal" interest of an author's

work under the justification that an author’s exclusive rights are not unreasonable. In other

words, more valid evidence should be required.

Banning  Bootlegging  of  Live  Performance  

Was  there  a  change?    If  so,  how?  Why?    

Concerning bootlegging of live performances, The TRIPS Agreement provided that

the right of public performance is a core right for the owners of copyright in musical

works. Public performance is one of the major ways in which such works are exploited.

However, when TRIPS was implemented such exploitation was terminated, because such

Agreement protects copyright laws. In addition TRIPS would allow business entities of

any size to use copyrighted music for free in order to entertain their customers, and

thereby stimulate sales of their own goods or service, a financial benefit that does not

depend on the existence of an admission charge.

Type  of  Change  

It leaded to the result that Congress sought to avoid in 1976. It supplanted existing

background music services and other licensing arrangements that provide revenue to

copyright owners today.

Ramifications  
The Copyright Office has concerns about the impact of a number of these

provisions on the practical ability of copyright owners to enforce their rights and obtain a

fair return for the use of their works. These concerns arise in part from the nature and

history of collective licensing in this country.

 U.S. Copyright and the TRIPS Agreement 16

Other  proposals  and  improvements  

Another proposal concerning bootlegging is the Affordability Act of 2007. The bill

includes provisions that would force universities to institute policies and procedures

regarding illegal downloading and file sharing. They would be required to "develop plans

for alternatives to online bootlegging to be offered to students and plans for exploring

technology-based bootlegging deterrents."

Advantages    
The extent of protection and enforcement of rights concerning Bootlegging of Live

Performances varied widely around the world; and as intellectual property became more

important in trade, these differences became a source of tension in international economic

relations. New internationally-agreed trade rules for intellectual property rights were seen

as a way to introduce more order and predictability, and for disputes to be settled more

systematically. The Agreement states performers must also have the right to prevent

unauthorized recording, reproduction and broadcast of live performances (bootlegging) for

no less than 50 years. Producers of sound recordings must have the right to prevent the

unauthorized reproduction of recordings for a period of 50 years.

Disadvantages    
Industry representatives complain of the economic and social harm caused by

bootlegging of live performance, because illegal musical production and consumption that

harm the music industry still occurring, and affects in essence the concept of intellectual

property laws.

Recommendations  
It should not be forgotten that TRIPS is an Agreement concerned with the

protection of intellectual property rights; therefore if an illicit good is being conducted

 U.S. Copyright and the TRIPS Agreement 17

such Agreement is to force strong laws upon such crimes. Also, the lack of protection and

significance concerning bootlegging of Live Performance issues were resolved when

TRIPS Agreement was implemented. Finally, bootlegging should be banned in order to

protect Live Performance as a whole.

CONCLUSION  

The implementation of the Trade Related Aspects of Intellectual Property Rights

Agreement (TRIPS) in the WTO provided remedy for the deficiencies of the Copyright

Act of 1976 in the United States through both the modification of Articles in the Copyright

Act, and through the interpretation of law in copyright infringement cases at local courts.

Despite the principle of non-extraterritoriality of the U.S congress, TRIPS was able to

provide remedy for injuries caused by copyright infringement outside U.S boundaries

where domestic laws did not apply. In addition, TRIPS updated the Copyright Act to

modern intellectual works such as computer programs and modern measurements of

infringement such as the recording of live performances for illicit distribution of works.

Notwithstanding, the Copyright Act along with TRIPS have reduced the lost in revenue for

illicit distribution of U.S works and has strengthening the protection of Copyrights both

within the United States and beyond its borders.

 
 U.S. Copyright and the TRIPS Agreement 18

REFERENCE  LIST  

Barton, J. (1986). International trade and investment: regulating international business.

Boston & Toronto: Little, Brown and Company.

Brennan, D. (2003). Retransmission and us compliance with trips [Kuwler Law

International].
(This book seeks to answer one central question: do the U.S. cable and satellite
retransmission statutory licenses comply with the TRIPs minimum standard),
Retrieved from
http://books.google.com/books?id=QBnHcl_il10C&dq=US+compliance+with+TRI
PS&printsec=frontcover&source=bl&ots=0J1un1_BEA&sig=tRnMjQjksr_qG1xn
G1AIZDKBC1Q&hl=en&ei=pA7mSpfCFtXR8AbQ8JSIBw&sa=X&oi=book_resu
lt&ct=result&resnum=4&ved=0CBgQ6AEwAw#v=onepage&q=&f=false

Bauer, Joseph P. . (2007, April 09). Addressing the incoherency of judicial

interpretation of the preemption provision of the copyright act of 1976. Retrieved
from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=978500

BNA (2006); Intellectual Property- Patent Trademark & Copyright Journal. Retrieved
September 29, 2009 from: http://ipcenter.bna.com/pic2/ip.nsf/id/BNAP-
6L8KCT?OpenDocument

Collora, M. (2000, July 28). Extraterritorial jurisdiction in cyberspace. Retrieved from

http://www.dwyercollora.com/law-articles/business/extraterritorial-jurisdiction-
cyberspace.aspx

Copyright Office (n.d.); Highlights of Copyright Amendments Contained in the URAA .

Retrieved September 17, 2009 from: http://www.copyright.gov/circs/circ38b.pdf

Cornell.edu. (n.d.). 17 USCS Sects. 101 - 810. COPYRIGHT ACT 1976, AS AMENDED.
Retrieved from http://www.law.cornell.edu/copyright/copyright.table.html

Crews, K. (2001, September). A&M records, inc. v. napster, inc.: implications for the
digital music library. Retrieved from
http://www.dml.indiana.edu/pdf/AnalysisOfNapsterDecision.pdf

Dratler, Jay. (2006). Intellectual property law: commercial, creative, and industrial
Property. Retrieved from http://books.google.com/books?id=-
gLuY2rBU9oC&printsec=frontcover#v=onepage&q=&f=false

Doyle, C. (2007). Extraterritorial application of American criminal law. CRS Report for
Congress, Retrieved from http://www.fas.org/sgp/crs/misc/94-166.pdf doi: Order
Code 94-166A

Elsevier, B.V. (2007). THE HISTORY OF COPYRIGHT PROTECTION OF

COMPUTER SOFTWARE. Retrieved from
http://www2.law.uu.nl/priv/cier/Documenten/PDFeng/The%20history%20of%20co
pyright%20protection.pdf
 U.S. Copyright and the TRIPS Agreement 19

EUpat, Initials. (2004, June 25). The Trips treaty and software patents. Retrieved from
http://eupat.ffii.org/stidi/trips/index.en.html

Fairness in Musical Licensing Act. United States House of Representatives, Initials.

(1997, July 17). Statement of Marybeth Peters. Retrieved from
http://www.copyright.gov/docs/regstat97.html

Fischer, (2003); Originality and the Idea Expression Dichotomy. Retrieved October
24,2009 from: aculty.cua.edu/.../Copyright03/Copyright%20Slides%20Four.ppt

Karjala, Dennis S. (1988). United states adherence to the berne convention and
copyright protection of information-based technologies. Retrieved from
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1411436

Kramer, L. (1995). Extraterritorial application of american law after the insurance antitrust
case: a reply to professors lowenfeld and trimble. Retrieved from
http://www.questia.com/googleScholar.qst?docId=93954300

Ladas & Parry , Initials. ( 2000 , August 01). Ladas & Parry Guide to Statutory
Protection for Computer Software in the United States. Retrieved from
http://www.ladas.com/Patents/Computer/Copyright.USA.html

Lesser, W. (n.d.). THE EFFECTS OF TRIPS-MANDATED INTELLECTUAL

PROPERTY RIGHTS ON ECONOMIC ACTIVITIES IN DEVELOPING
COUNTRIES. Retrieved from http://www.wipo.int/export/sites/www/about-
ip/en/studies/pdf/ssa_lesser_trips.pdf

Library of Congress. (1977). General guide to the copyright act of 1976. Retrieved from
www.copyright.gov/reports/guide-to-copyright.pdf

McManis, Charles R. (1996). Taking trips on the information superhighway:

international intellectual property protection and emerging computer technology
Retrieved from
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd
=true&risb=21_T7762951105&format=GNBFI&sort=RELEVANCE&startDocNo
=1&resultsUrlKey=29_T7762929692&cisb=22_T7762951140&treeMax=true&tre
eWidth=0&csi=139228&docNo=1

Martignon, (2004) Case: Jean Martignon. United States District Court Southern
District of New York. Retrieved October 24, 2009 from:
http://www.lessig.org/blog/archives/martignon-smaller.pdf

Partridge, M.(2009). Seeking damages for extraterritorial copyright infringement.

Retrieved
from http://www.pattishall.com/pdf/SeekingDamages.pdf

Schauwecker, M. (2008). Extraterritoriality in patent law: a comparative analysis of

extraterritorial application of
patent law in the united states and Europe, and a proposal for global guidelines for
 U.S. Copyright and the TRIPS Agreement 20

resolving future cases. Retrieved from

http://www.law.stanford.edu/program/centers/ttlf/pdf/Schauwecker_Abstract.pdf

Thornburg, R. (2005). Choice of law in international copyright: the split of authority

between
the second and ninth circuits regarding extraterritorial application of the copyright
act. Journal of Technology, Law and Policy, 10(1), Retrieved from
http://grove.ufl.edu/~techlaw/vol10/issue1/thornburg.html

United States Court of Appeals for the Ninth Circuit, Initials. (1994, May 13). Subafilms,
ltd.; the hearts corp., plaintiffs-counter-defendants-appellees, v. mgm-pathe
communications co.,. Retrieved from http://www.altlaw.org/v1/cases/445846

United states district court for the western district of Pennsylvania, Initials. (2000,
February
8). Twentieth century fox film corporation, et al., plaintiffs, v. icravetv, et al.,
defendants. national football league, et al., plaintiffs, v. tvradionow corporation,
d/b/a icravetv.com, d/b/a tvradionow.com, et al., defendants.. Retrieved from
http://sharealike.org/wpcontent/uploads/sharealike/2009/03/twentiethcenturyfoxfil
mcorpvicravetv_53uspq2d1831_wdpa2000.pdf

United States Court of Appeals For the First Circuit, Initials. (2000, September 27).
Microsystems software, inc., et al., plaintiffs, appellees, v. scandinavia online ab, et
al., defendants, appellees.. Retrieved from http://caselaw.lp.findlaw.com/cgi-
bin/getcase.pl?court=1st&navby=docket&no=001503

White, K. (2006). The Recent expansion of extraterritoriality in patent infringement

cases. Retrieved from
http://www.lawtechjournal.com/articles/2007/01_070409_white.pdf

WTO, (n.d.). Standards concerning the availability, scope and use of Intellectual
Property Rights . Retrieved from http://www.wto.org/english/docs_e/legal_e/27-
trips.pdf