Nevertheless, there are operative variations between the concepts of "U.S. works" and "country of origin". The definition of "country of origin" in the Berne Convention has a narrowing or pinpointing function – it seeks to determine, of all the countries in the world, the country from which a published work can be considered to have originated. The definition of "United States work" need not be so comprehensive. It seeks to determine only whether a work originates (i.e. is firstly or simultaneously published) in the U.S. or not for the purpose of imposing registration requirements. If the work does not originate in the U.S., then it has little relevance to the operation of section 411. As being emphasized in The Senate Statement on the Berne Convention Implementation Act of 1988, it is "not necessary in all cases to determine the precise country of origin of the work in order to know whether or not the registration prerequisite to suit applies".
Despite the relatively clear function of the section 101 definition of "United States work", it is not always easy to determine whether a particular work falls within the language of this definition. For example, it is uncertain (and unsettled) whether works that are first published online can be considered U.S. works for the purposes of section 411. This is because a work first published online is arguably published in all countries in the world with internet access, including the United States, which may bring the work within paragraph (1)(B) or (C) of the definition of "United States work" even if the work was not created or uploaded in the United States and the author is not a U.S. national, domiciliary or resident. As we have alluded to earlier, the following two cases considered this very issue of online publication and reached vastly different conclusions about whether the work was a U.S. work under section 411.
3.2 Moberg v 33T
Håkan Moberg, a professional photographer from Sweden created a series of photographs entitled "Urban Gregorian I-IX". These photos were first published in 2004 on a German website, blaugallery.com, which offered copies of the photos for sale as canvas prints. In late 2007, three websites began displaying the Moberg's Urban Gregorian images.
In September 2008, Moberg brought a complaint in the United States federal district court against the website proprietors for copyright infringement under the U.S. Copyright Act. The defendants argued that the court lacked subject matter jurisdiction because the work was a 'United States work', which had not been registered in accordance with s 411(a) of the Copyright Act.
eliminated, in favor of an introductory phrase to the existing provision which makes it inapplicable to "actions for infringement of copyright in Berne Convention works whose country of origin is not the United States." Secondly, in section 411(b), dealing with works such as live broadcasts that are first fixed simultaneously with transmission, the amendment inserts after the reference to post-broadcast registration of the work the phrase "if required by subsection (a)." Finally, the amendment inserts in the definitional section of the Copyright Act, 17 USC 101, a definition of "country of origin" of a Berne Convention work.The definition of country of origin, while a new feature of U.S. copyright law, is a familiar principle to students of Berne. The definition contained in the amendment tracks the definition of this phrase contained in Article 5(4) of Berne. For the guidance of practitioners, and of the courts, the following observations may be in order.
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The Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, 2857, amended § 101 by adding the definition of "country of origin" of a Berne Convention work, for purposes of § 411. The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998, Pub. L. No. 105-304, 112 Stat. 2860, 2861, amended that definition by changing it to a definition for "United States work," for purposes of § 411. See U.S. Copyright Office, Copyright Law – Chapter 1 ('Chapter 1 Endnotes'), http://www.copyright.gov/title17/92chap1.html (last visited Sept. 15, 2011).
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