Page:Country of Origin and Internet Publication - Applying the Berne Convention in the Digital Age.pdf/4

 most cases, the nationality, domicile or habitual residence of the author of the work should be the determinative factor in ascertaining the country of origin of the work. As discussed above, there are gaps in the Berne Convention's articulation of "country of origin" which provide scope for judicial interpretation, at a national level, of the most pragmatic way forward in reconciling the goals of the Berne Convention with the practical requirements of domestic law. We believe that the uncertainties arising under the Berne Convention created by new forms of online publishing can be resolved at a national level by the sensible application of principles of statutory interpretation by the courts. While at the international level we may need a clearer consensus on what amounts to "simultaneous publication" in the digital age, state practice may mean that we do not yet need to explore textual changes to the Berne Convention.

One of the aims of the Berne Convention is "to help nationals of its member States obtain international protection of their right to control, and receive payment for, the use of their creative works". For example, Article 5(1), under the title 'Rights Guaranteed', states that "Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention".

In addition, the 1908 Berlin revision of the Berne Convention established a prohibition on the imposition of any governmental formalities by a Member country as a precondition for "the enjoyment and the exercise" of copyright in foreign works in that country. Today, this rule reads as follows in Article 5(2) of the Convention: "The enjoyment and the exercise of these rights shall not be subject to any formality". The Convention therefore purports to secure minimum rights for authors, which automatically arise without the need to obey formalities, in countries of the Union other than the country of origin of the work. Protection of works in their country of origin is governed by domestic law and may, in fact, be subject to formalities (as they are in the U.S. for enforcement of rights). Therefore, a central object of the Convention is to guarantee that a foreign work will be protected in a Union country other than its country of origin without formality requirements.

The definition of "published works" set forth in Article 3(3) of the Convention is as follows: The expression "published works" means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work.