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 Convention". However, the history at the time of making the Berne Convention indicates that there was a debate over the choice of "nationality" or "territoriality" as criterion for the protection of published works. It was not until the ALAI Conference for the drafting of the Berne Convention in September 1883 that the territoriality approach triumphed. It is likely that a key reason for selecting territoriality over nationality was that this criteria would maximize the chances of non-Union authors obtaining copyright protection for their works in different countries (particularly within Union nations) in later 19th century and earlier 20th century. At the time of drafting, the Convention had a very small number of Member countries and limited geographic coverage. Today there are 164 signatory nations of the Berne Convention out of about 192 countries and regions in the world. However, only 10 countries (Belgium, France, Germany, Great Britain, Haiti, Italy, Spain, Switzerland, and Tunisia) signed the Convention in 1886, and the number of member nations gradually expanded to 58 in 1970, 70 in 1980, 83 in 1990 and 147 in 2000. The "territoriality" approach ensured that authors who were nationals of a non-Union countriescountry [sic] could obtain copyright protection for their work in countries of the Union if their work was first published in a country of the Union or was published simultaneously in a Union country and non-Union country.

In December 1998, Professor Ginsburg prepared a document for WIPO in which she stated: "In effect, to determine the country of origin, we are seeking the country that has the most significant relationship to the act of making the work available to the public." She suggested, therefore, that the country of the website's business establishment, the country where the author resides, or a country with significant contacts with the author should be considered as the country of origin, depending on the particular circumstances. However, she also noted that this criterion "is not currently present in the Berne Convention". Most recently, in 2006, Professors Ricketson and Ginsburg joined together to argue that where simultaneous publication is effected by means of digital communications such as the Internet, it made sense to designate the country of the author's nationality as the "country of origin" of the work.

Before our proposed text can be adopted, it is necessary to determine whether, as a matter of statutory interpretation, our test can be read into the determination of "United States work" under section 101 of the U.S. Copyright Act. We believe that it can. Justice Torres in Kernel v Mosley held: