The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.
In addition, "simultaneous publication" is defined under Article 3(4): "A work shall be considered as having been published simultaneously in several countries if it has been published in two or more countries within thirty days of its first publication."
The definition of "published works" and the corresponding determination of the country of origin of a work are significant to the application of certain important clauses of the Convention. As highlighted by the Committees of Experts on a Possible Protocol to the Berne Convention, these clauses include "[the] application of the protection of the Convention to authors who are not nationals of one of the countries of the Union but whose works have been first published in one of those countries (Article 3(1)(b)); the comparison of terms of protection (Article 7(8)); and application of the Convention to works already in existence when their country of origin first joins the Convention (Article 18(1))."[1] In addition, the protection of foreign works under Articles 5(1) and (2) and foreign nationals under Art 5 (3) require determination of what is the "country of origin". A modern enquiry, contemplated in both the Kernel v Mosley and Moberg v 3TT cases discussed below, is what happens under our assessments of "published" and "country of origin" where a work is first made available to the public online. Is the act of posting a work to the Internet enough to make the work a "published work" under the Berne Convention? And if so, given that the Internet is a globally distributed platform, how do we determine the country or countries of first (or simultaneous first) publication for the purpose of establishing the country of origin?
The general consensus appears to be that Internet dissemination is enough to render a work "published". A WIPO Committee of Experts has acknowledged as much, stating, "As far as the public is concerned, these new forms of publishing are functionally no different than the traditional forms: the works are available".[2] Under the abovementioned Article 3(3) of the Berne Convention, the dispositive factor in determining whether a work is published is "[that] the availability of such copies has been such as to satisfy the reasonable requirements of the public". We agree with the proposition that posting a work over the Internet may "easily satisfy this requirement".[3] Therefore, we contend that once a work is made available over the Internet the work will be published in every country with adequate access to the Internet. Nevertheless, it does not follow that the work will become a "work of every country"; or put differently, it does not mean that the country of origin of the work will be every country in the world.[4]
- ↑ WIPO, Basic Proposal for the Substantive Provisions of the Treaty on Certain Questions Concerning the Protection of Literary and Artistic Works to be Considered by the Diplomatic Conference (CRNR/DC/4) at 16 (August 30, 1996), http://www.wipo.int/edocs/mdocs/diplconf/en/crnr_dc/crnr_dc_4.pdf.
- ↑ Id.
- ↑ Id.
- ↑ In December 1996, the WIPO Committee of Experts raised concerns about the potential impact of new technologies on the provisions of Article 3(3) and Article 5(4) of the Berne Convention. The Committee proposed the following solution:
Article 3 Notion and Place of Publication
(1) When literary or artistic works are made available to the public by wire or wireless means in such a way that members of the public may access these works from a place and at a time individually chosen by them, so that copies of these works are available, Contracting Parties shall, under the conditions specified in Article 3(3) of the Berne Convention, consider such works to be published works. (2) When applying Article 5(4) of the Berne Convention, Contracting Parties shall consider works referred to in paragraph (1) of the present Article to be published in the Contracting Party where
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