Country of Origin and Internet Publication: Applying the Berne Convention in the Digital Age[Note 1]
Professor Brian Fitzgerald, Dr Sampsung Xiaoxiang Shi, Cheryl Foong and Kylie Pappalardo[Note 2]
I. INTRODUCTION
It is increasingly common for copyright works to be made available to the public for the first time via the Internet. Online publication allows a work to be published simultaneously throughout the world to every country with Internet access. While this is certainly advantageous for the dissemination and impact of information and creative works, it creates potential complications under the Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention"), an international intellectual property agreement to which most countries in the world now subscribe. The Berne Convention contains national treatment provisions, which require member countries to extend baseline rights and protections to foreign copyright works.[1] Rights accorded under the national treatment provisions may not be subject to any formality, such as registration requirements.[2] Member countries are free to and some do impose formalities on the exercise of rights in relation to domestic copyright works. In the United States, for example, the Copyright Act of 1976 establishes a requirement that copyright owners register their work with the Copyright Office before they can commence a civil action for infringement of their work.[3] Additionally, the U.S. law limits the availability of certain remedies depending on when the work was registered.[4]
The Berne Convention contains "country of origin" provisions, which amongst other things seek to assist member countries in determining whether copyright works are domestic or foreign. Under the Convention, determining the country of origin of a published work is simply a matter of ascertaining where that work was first published or simultaneously published.[5] The rules provide that for works first published in a country of the Union, the country of origin will be that country.[6] For works published simultaneously in several countries of the Union which grant different terms of protection, the country of origin will be the country with the shortest term of protection, and for works published simultaneously in a country of the Union and a country outside of the Union, the country of origin will be the Union country.[7] Historically, determining the country of origin of a published work
- ↑ Article first published as Brian Fitzgerald, Sampsung X Shi, Cheryl Foong & Kylie Pappalardo, 'Country of Origin and Internet Publication: Applying the Berne Convention in the Digital Age', Nigerian Institute of Advanced Legal Studies (NIALS) Journal of Intellectual Property (NJIP) Maiden Edition 2011, 38-73.
- ↑ Brian Fitzgerald is Professor of Intellectual Property and Innovation at Queensland University of Technology (QUT) in Brisbane, Australia. Sampsung Xiaoxiang Shi is a lecturer at East China University of Political Science and Law in Shanghai, China, and a post-doctoral research fellow at QUT. Cheryl Foong is an LLM candidate and researcher with the QUT Faculty of Law. Kylie Pappalardo is an LLM graduate of Georgetown University Law Center and a doctoral candidate with QUT Faculty of Law. We acknowledge the support of the Australian Research Council (ARC) Centre of Excellence for Creative Industries and Innovation (CCI).
- ↑ Article 5(1). Discussed in more detail below.
- ↑ Article 5(2). Discussed in more detail below.
- ↑ Copyright Act: 17 U.S.C. § 411(a).
- ↑ Copyright Act: 17 U.S.C. § 412.
- ↑ "Simultaneous publication" is defined as within 30 days of first publication: Article 3(4). For unpublished works, the country of origin is the country of the Union of which the author is a national: Article 5(4)(c).
- ↑ Article 5(4)(a).
- ↑ Article 5(4)(a) and (b).
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