It is paragraphs (B) and (C) (the "simultaneous publication" provisions) that were at issue in the Moberg and Kernel cases. We argue that from a common-sense approach to and plain reading of the Act, it is not apparent that the intention of these provisions was to bring into the definition of "United States work" a huge expanse of foreign produced and owned works, thus subjecting them to registration requirements. Rather, it seems to us that the intention was to ensure that works with a sufficient connection to the United States were not excluded from the definition of "United States works" simply by virtue of them also being published (simultaneously) in foreign countries. Further, in the remaining subsections of the definition, relating to unpublished works and visual works incorporated into a building or structure, there is a clear requirement that all authors must be nationals, domiciliaries, or habitual residents of the United States (for unpublished works) or that the building or structure in which the work is incorporated be located in the United States. There is nothing in the language of any of the provisions of this definition that indicates an intent that the definition, or section 411, would have an extraterritorial effect.
Nor is there anything in the circumstances surrounding the inclusion of this definition in the Copyright Act to suggest an intention that section 411 would apply extraterritorially. The definition of "United States work" was inserted into the Copyright Act by the Berne Convention Implementation Act to give effect to the terms of the Berne Convention relating to country of origin.[1] Article 5 of the Berne Convention is clear that copyright in foreign works is to be recognised in all Member countries without being subject to formality requirements. A situation in which all works published online, regardless of where they are created or the nationality, domicile or habitual residence of the author, are subject to formalities under United States law does not sensibly accord with Article 5 of the Berne Convention, nor the purpose of implementing the Berne Convention within U.S. domestic law.
4.2 Interpreting “United States Works” Based on a Presumption against Extraterritoriality: A Proposal
We propose that the country of origin of a work, including whether a work is or is not a "United States work" under the U.S. Copyright Act, should be determined (and confined) by reference to a "real and substantial connection" test. This test would ask: which is the jurisdiction with which the work has the most substantial connection, so as to reasonably conclude that the work originated from that jurisdiction?
This test has parallels to the choice of law principles in United States law. The Restatement of the Law, Second, Conflict of Laws, §6, sets out the choice of law principles as:
| (1) | A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. | ||||||||
| (2) | When there is no such directive, the factors relevant to the choice of the applicable rule of law include | ||||||||
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- ↑ In fact, as explained above, the original definition inserted into the U.S. Copyright Act was for "country of origin"; this was later changed to "United States work" by the WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998, Pub. L. No. 105-304, 112 Stat. 2860.
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