Page:Country of Origin and Internet Publication - Applying the Berne Convention in the Digital Age.pdf/7

 Internet, every work of authorship could be considered a domestic work in each country of the Berne Union. In that event, ironically, Berne Convention minimum standards of protection might never apply, because there will be no foreign works.

Alternatively, it is also arguable that under Article 5(4)(a) of the Convention, the work could be considered to be "published simultaneously in several countries" and the country of origin of the work should be "the country whose legislation grants the shortest term of protection". Then all works first published over the Internet will have whichever is the shortest term of protection in the world under the copyright laws in effect at that time. "These anomalies", as Ginsburg points out, "suggest that the notion of Internet 'publication' should be limited to a single Berne Union country: but which one?"

These uncertainties in the application of the Berne Convention become particularly relevant in suits for infringement of foreign works brought in the United States. The U.S. imposes a registration requirement before infringement actions can be brought with respect to U.S. works. If a work first published online in any country in the world can be deemed a "U.S. work", then potentially all authors of the world, wherever they reside, must register their copyright with the U.S. Copyright Office before they can assert their copyright interests in U.S. courts. The difficulty in determining country of origin has been brought to light in two U.S. District Court cases involving works first made available online, Kernel v Mosley and Moberg v 33T. The courts had divergent views on what constituted a "United States work", which in turn led to two very different results.

Section 411(a) of the Copyright Act of 1976 of the United States provides that "no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made". This means that in the U.S., domestic copyright owners must complete copyright registration or preregistration in order to bring a suit for infringement in federal court. This registration requirement only applies to "U.S. works", not foreign