Page:Country of Origin and Internet Publication - Applying the Berne Convention in the Digital Age.pdf/15

{| By analogy, the determination of the country of origin of a work can be assisted by reference to factors such as the needs of international systems, protection of justified expectations and certainty, predictability and uniformity of results. However, we argue that the one dominating factor in this analysis should be the nationality, domicile or habitual residence of the author of the work. This is the obvious factor in which to ground the origin of a work. In nearly all cases it will point to a clear and sensible point-of-origin for a work and in most cases it will effectively limit the extraterritorial application of domestic copyright law.
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We can envisage some scenarios in which this factor would not conclusively indicate a country of origin for a work. One is where there are multiple co-authors of a work and each co-author resides in or is a national of a different country. These situations will not be the norm, however, and in these situations additional factors can be taken into account in ascertaining the country with the most substantial connection to the work, including where the work was created, where the work was uploaded, and the expectations of the affected parties.

We submit that this test would have helped to resolve the Moberg v 33T and Kernel v Mosley cases in a more sensible and legally foreseeable way. In Moberg v 33T, the country of origin of the work would be Sweden, the country of nationality and residence of the photographer of the work (Moberg). In Kernel v Mosley, the country of origin of the work would be Norway, the country of nationality and residence of the author of the work. The Kernel case is potentially more complicated in that the author claimed that the work was first published in an Australian disk magazine. If supported by sufficient evidence, it is arguable that the country of origin of the work should be Australia.

The critical point is that in neither of these cases is the United States logically or sensibly the country of origin of these works.

Our proposal for a nationality criterion is not a radical one.

As early as 1987, Samuel Ricketson argued that the country of origin of a work should, in most cases, be the country of the author's nationality. Referring to the Berne Convention, Ricketson wrote, "[this] concept of 'country of origin' is only really necessary in the case of non-Union authors, and there is little justification for its use in other cases, particularly when the application of the above rules often means that the country of origin of a published work will be different from the country of which the author is a national." "In such cases," he suggested, "it is more logical that the [country of origin] of a work should be the country of which the author is a national." As Ricketson highlighted, "[the country of origin] of a work is a concept which is linked directly to the criterion of territoriality ('the place of first publication') as the criterion for entitlement to protection under the [Berne]