Page:Country of Origin and Internet Publication - Applying the Berne Convention in the Digital Age.pdf/17

 "'[T]he starting point for interpreting a statute is the language of the statute itself.' Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). 'As a basic rule of statutory interpretation, we read the statute using the normal meaning of its words.' Consolidated Bank, N.A. v Office of Comptroller of Currency, 118 F.3d 1461, 1463 (11th Cir. 1997) … We look beyond the plain language of a statute only when it is unclear or ambiguous, when Congress has clearly expressed a legislative intent to the contrary, or when an absurd result would ensue from adopting the plain language interpretation. Id. at 1463-64."

His Honour went on to determine that "[a]bsent evidence of Congressional intent to the contrary, the term 'simultaneously' should be given its ordinary and plain meaning", that a work published online was published simultaneously in all countries with internet access, including the United States, and that this made the work a "United States work" for the purposes of section 411 of the Copyright Act.

We do not believe that "United States work" can be so easily read to apply so broadly. The purpose of defining "United States works" is to determine which works will be subject to registration requirements under U.S. law – it therefore has a limiting function, not an expansive function. We do not believe that Congress intended that all works published online, wherever created and whether owned by foreign nationals or residents, would be considered U.S. works, and that the U.S. copyright law would, as a result, have such a broad, extraterritorial application. We believe that it is more sensible to read "first published… simultaneously in the United States and another treaty party or parties" and "first published…simultaneously in the United States and a foreign nation that is not a treaty party" to import a requirement that there be a proper (under our proposal: real and substantial) connection with the United States sufficient to reasonably render the work a "United States work" under U.S. law.

It is also worth noting that our proposal does not preclude foreign nationals from bringing their works within the definition of "United States work" under the U.S. Copyright Act. Foreign nationals who intend that their work be designated a United States work under section 411 can clearly exhibit this intention by first publishing their work in the United States, bringing it squarely within paragraph (1)(A) of the definition of "United States work".

We also do not believe that our proposal has any negative impact on a reading of Article 5 of the Berne Convention. Our proposal is designed to assist a country in determining whether a particular work should be found to come within the scope of domestic copyright law, such that an exercise of the associated rights (including bringing an action for infringement) can be held to be dependent on certain formalities prescribed in domestic law. As argued above, adherence to the Berne Convention depends on a sensible interpretation of the requirements of the Convention at a national level. The Berne Convention provides little guidance as to country of origin in situations where a work is published simultaneously in multiple member countries with the same term of protection. Such a situation will be increasingly common as more countries enact the same minimum term provisions (usually, life of the author plus 70 years) and more and more works are published online. In such situations, we need a means of determining the country of origin of a work that is logical, reasonable,