2.3 Identifying the Country of Origin
What then is the country of origin of a work first published online? Article 5(4) of the Convention sets out the rules for determining the country of origin as:
| (a) | in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection; | ||||
| (b) | in the case of works published simultaneously in a country outside the Union and in a country of the Union, the latter country; | ||||
| (c) | in the case of unpublished works or of works first published in a country outside the Union, without simultaneous publication in a country of the Union, the country of the Union of which the author is a national, provided that: | ||||
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While these rules look comprehensive at first glance, they fail to address a number of probable scenarios. As a result, legal uncertainties may arise, particularly in the case of Internet publication. As Ricketson and Ginsburg have observed, certain situations are not directly covered by the rules in Article 5(4). These situations include where: (i) The case of Union authors where the country of origin of their published works is a different country from that of which they are a national; (ii) a work is published simultaneously in several countries of the Union that have the same period of protection; and (iii) a work is unpublished or first published in a country outside the Union and the work has several co-authors from different Union countries.[1]
In the digital era, it has become even more apparent that the rules in Article 5(4) fail to cover the field. If a work is initially posted and made available to the public over the Internet, such publication "may be truly simultaneous, within seconds" to every corner of the world.[2] It is arguable that a work first made available online could be considered by any country in the world to be "first published" within that country and thus subject to domestic law (including any applicable formalities) as a "domestic work". Indeed, this was the position reached in relation to U.S. law in the Kernel v Mosley decision. As Professor Ginsburg noted,
A Union member meets its Berne obligations if it accords protection consonant with Convention minima to foreign Berne-Union works. Arguably, with simultaneous universal publication via the
- ↑ This will happen where an author who is a national of a Union country first publishes his work in another country of the Union. See Sam Ricketson and Jane C Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond 283-86 (Oxford University Press, New York, 2nd ed, 2006). See also, Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 214-15 (The Eastern Press Ltd, 1987).
- ↑ Ricketson and Ginsburg, supra note 19, at 285.
the necessary arrangements have been made for availability of these works to members of the public. [Emphasis in bold added.]
The Committee explained that "[t]he expression 'necessary arrangements' is intended to mean such steps as are an absolute condition sine qua non for the availability of the work. Mere linking or routing arrangements are not sufficient." While not perfectly clear, this approach suggests that the place of publication of a work would likely be the country where the work is first uploaded and made available online, or the country where the publication of the work is specifically targeted. However, the Committee's proposal was not adopted in the final text of the WIPO Copyright Treaty ("WCT").
See WIPO, supra note 15, 18-21.
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