Page:Country of Origin and Internet Publication - Applying the Berne Convention in the Digital Age.pdf/6



What then is the country of origin of a work first published online? Article 5(4) of the Convention sets out the rules for determining the country of origin as: While these rules look comprehensive at first glance, they fail to address a number of probable scenarios. As a result, legal uncertainties may arise, particularly in the case of Internet publication. As Ricketson and Ginsburg have observed, certain situations are not directly covered by the rules in Article 5(4). These situations include where: (i) The case of Union authors where the country of origin of their published works is a different country from that of which they are a national; (ii) a work is published simultaneously in several countries of the Union that have the same period of protection; and (iii) a work is unpublished or first published in a country outside the Union and the work has several co-authors from different Union countries.

In the digital era, it has become even more apparent that the rules in Article 5(4) fail to cover the field. If a work is initially posted and made available to the public over the Internet, such publication "may be truly simultaneous, within seconds" to every corner of the world. It is arguable that a work first made available online could be considered by any country in the world to be "first published" within that country and thus subject to domestic law (including any applicable formalities) as a "domestic work". Indeed, this was the position reached in relation to U.S. law in the Kernel v Mosley decision. As Professor Ginsburg noted, A Union member meets its Berne obligations if it accords protection consonant with Convention minima to foreign Berne-Union works. Arguably, with simultaneous universal publication via the