and which respects the purpose behind Article 5(2) of the Berne Convention in limiting the imposition of formality requirements for foreign works. We believe our proposal achieves this end.
V. CONCLUSION
Justice Torres's interpretation of the "plain language" of the statute failed to appreciate the limiting function of the term "United States work", contrary to the intention of Congress. This interpretation was not in line with the presumption against extraterritorial application of U.S. law, and if applied widely, would mean that all works first published online would be subject to the U.S. registration requirement before an action for infringement could be commenced.
Many works are still physically published in select jurisdictions, and in those instances, the territoriality approach to determine whether a work is a "United States works" (or to determine if the United States is the Country of Origin) is still logical and relevant. However, the fact that many works are simultaneously published and made available online necessitates a sensible reading of the definition of "United States work" in section 411. This sensible reading calls for an enquiry into whether the works has a "real and substantial connection" with the United States – the dominating factor in this analysis being the nationality, domicile or habitual residence of the author. As we have discussed, this approach is consistent with both the U.S. Copyright Act and the Berne Convention, and reflects the changing pace of technology.
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