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Internet, every work of authorship could be considered a domestic work in each country of the Berne Union. In that event, ironically, Berne Convention minimum standards of protection might never apply, because there will be no foreign works.[1]

Alternatively, it is also arguable that under Article 5(4)(a) of the Convention, the work could be considered to be "published simultaneously in several countries" and the country of origin of the work should be "the country whose legislation grants the shortest term of protection". Then all works first published over the Internet will have whichever is the shortest term of protection in the world under the copyright laws in effect at that time.[2] "These anomalies", as Ginsburg points out, "suggest that the notion of Internet 'publication' should be limited to a single Berne Union country: but which one?"[3]

These uncertainties in the application of the Berne Convention become particularly relevant in suits for infringement of foreign works brought in the United States. The U.S. imposes a registration requirement before infringement actions can be brought with respect to U.S. works.[4] If a work first published online in any country in the world can be deemed a "U.S. work", then potentially all authors of the world, wherever they reside, must register their copyright with the U.S. Copyright Office before they can assert their copyright interests in U.S. courts. The difficulty in determining country of origin has been brought to light in two U.S. District Court cases involving works first made available online, Kernel v Mosley[5] and Moberg v 33T.[6] The courts had divergent views on what constituted a "United States work", which in turn led to two very different results.

III. “UNITED STATES WORKS” IN THE U.S. COPYRIGHT ACT

3.1 Defining “United States Works” for the Purpose of Section 411

Section 411(a) of the Copyright Act of 1976 of the United States provides that "no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made". This means that in the U.S., domestic copyright owners must complete copyright registration or preregistration in order to bring a suit for infringement in federal court. This registration requirement only applies to "U.S. works", not foreign

  1. ↑ Jane Ginsburg, Private International Law Aspects of the Protection of Works and Objects of Related Rights Transmitted through Digital Networks (WIPO, GCPIC/2) (30 November, 1998) 7, http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=926. See also, Jane Ginsburg, Borderless Publications, the Berne Convention, and U.S. Copyright Formalities, The Media Institute, October 20, 2009, http://www.mediainstitute.org/new_site/IPI/2009/102009_BorderlessPublications.php.
  2. ↑ See further Article 7(8) of the Convention, which provides as follows: "In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work."
  3. ↑ Ginsburg, supra note 21, at 8.
  4. ↑ Copyright Act: 17 U.S.C. §411. Note that in limited circumstances, it may be possible to commence proceedings and subsequently obtain copyright registration. The plaintiff would have to amend the complaint and add the allegation that registration has been obtained, but good cause under the Federal Rules of Civil Procedure (Fed. R. Civ. P. 16) must be shown before a court will consider whether the amendment is proper under Fed. R. Civ. P. 15(a). To show good cause for an untimely amendment, the plaintiff must demonstrate diligence (see e.g. Oravec v Sunny Isles Luxury Ventures, L.C., 527 F. 3d 1218, 1232 (11th Cir. 2008)). In Kernel v Mosley however, Justice Torres held that this was not satisfied because registration was sought and obtained after the Court had ruled for the Defendants.
  5. ↑ 2011 U.S. Dist. LEXIS 60666 (S.D. Fla. June 7, 2011).
  6. ↑ 666 F. Supp. 2d 415 (D. Del. Oct. 6, 2009).

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