Prof. Jane C. Ginsburg, Columbia University School of Law
January 23, 2012

This column1 follows on the entry of Aug. 29, 2011, which addressed the international copyright law status of works first disclosed in digital format over the Internet, and not subsequently “published” in hardcopy formats.  The prior column concluded that under the definition of “publication” in the Berne Convention, such works are not “published,” and their countries of origin must be determined by reference to their authors’ nationalities.  Ascertaining the “country of origin” (“CO”) is important for at least four reasons: The CO determines whether a work is eligible for protection under the Convention (Berne, Art. 3); the duration of copyright turns on the term of protection in the CO (Berne, Art. 7(8)); the determination of whether a newly adhering member State must restore copyright to foreign works whose copyright terms have not expired in their countries of origin (Berne, Art. 18); and, most important for present purposes, the CO’s domestic law governs the protection afforded local works – local authors are not entitled to Berne-level protection in the CO (Berne, Art. 5(3)).  As a result, the United States may impose formalities on the authors of U.S. works, even though Berne will prohibit their imposition on foreign authors (Berne, Art. 5(2)).

If, as the prior column concluded, an Internet-disclosed work is not (and might never be) “published” within the meaning of Berne Art. 3(3), the point of attachment under Art. 5(4)(c) becomes the author’s nationality (at the time of the work’s creation).  Because this is a relatively stable criterion, it supplies a workable point of reference – for single-authored works.  The more co-authors a work has, however, the more potential countries of origin it may have, particularly in the digital environment, which may foster collaborations across many countries.  The question thus arises whether it is possible, under the Berne Convention, to simplify the determination of the country of origin of unpublished multiple-authored works, especially in the absence of conventional rules concerning authorship and ownership of joint works.  The interpretive issues underlying this determination are not confined to Internet-disclosed works, and the Convention’s lacuna in this regard affects unpublished works generally.  Nonetheless, the problem is most acute in the context of “unpublished” works made available over the Internet.  This column therefore inquires: If the author’s nationality provides the point of attachment for determining the CO, what is the CO in the case of a work created by multiple authors from multiple countries?

One approach could be to analogize from Art. 5(4)(a), which addresses simultaneous first publication in multiple Union countries, and designates the country with the shortest Berne-compatible term (generally life+50).  But, even if many countries have now adopted a life+70 copyright term, there remain many countries whose term of protection is still life+50; as a result, this solution to designating the country of the shorter term may not simplify sufficiently.

On further reflection, however, it may not be necessary to reduce the identification of the country of origin to a single country when the point of attachment is authorship rather than publication and the work has many co-authors.  While, in the case of multiple authors, the country of origin may be all the countries of the authors’ nationalities, this does not in fact mean that the WORK will be subject to sub-Berne protection in each of those countries.  Rather, under Art. 5(1) only the local AUTHOR might be covered by her national law (which might be less protective than Berne minima); non-local authors would still be entitled to Berne minimum protection.  As a practical matter, then, Berne member states may not impose formalities on (or otherwise accord less than Berne-minimum protection to) multiple-authored works whose authors are nationals of other countries because one author’s country of origin is not the country of origin for the other authors.

A disadvantage of this approach is that, in the event of sub-Berne protections in a particular member state, the plaintiffs in any copyright action will have to be the non-local authors.  This may increase the cost of litigation, and, conceivably, deny monetary recovery to the local author.

There exist within the interstices of the Berne Convention alternative approaches to designating the country of origin.  Because the Convention’s definition of country of origin does not address joint works, it may be possible to fill the gap by interpreting the country of origin of a multiple-authored work as the country of nationality (or residence) of a majority of the co-authors.  In the case of dynamic collaborations, however, the majority country could change as new co-authors participate in the work’s creation.  Failing a majority country, or in lieu of such a point of attachment, the joint authors might agree to designate one co-author’s country as the origin.  In the case of multiple-authored works created over the Internet, such a designation could easily be implemented, for example in the terms and conditions of access to the co-authored work.

The co-authors’ designation of a country of origin may resolve an additional problem that may arise in the collaborative creation of works over the Internet: the country of origin of anonymous works.  If the unpublished work is truly anonymous, it has no country of origin, and will not qualify for protection under the Convention.  However, if some of the co-authors (and their nationalities) are known, the work will not be considered anonymous.  If none of the co-authors is known, but the work is a cinematographic work, the maker’s nationality supplies the point of attachment (assuming the maker is known); see Berne, Art. 5(4)(c)(i).  For other kinds of works, if none of the authors is known, there may still be a way to identify a country of origin within the Berne Convention’s coverage.  Under Art. 15(3) the “publisher” whose name appears on the work is “deemed to represent the author.”  The word “publisher” in Art. 15(3) need not always be understood as the person or entity who “publishes” the work in the sense of Art. 3(3).  Instead, the Art. 15(3) “publisher” of  “unpublished” works could also be understood as the person or entity who assembles, edits, and makes the work available, such as, for example, a wiki.  This would seem a permissible interpretation of Art. 15(3) in view of the changing technology.  As the author’s proxy, the “publisher’s” nationality or seat could therefore supply the relevant point of attachment under Art. 5(4)(c).

Article 15(3) inspires a more general approach: In the case of a work created by multiple authors, particularly one to which multiple authors contribute successively, and in the absence of a collective designation of a country of origin, then even if some or all of the contributors are known, the person or entity who has assembled and made the work available could be deemed the author or publisher of the work as a whole – without prejudice to the authorship of individual contributions, if separately identifiable – and the country of that person’s nationality or headquarters would be deemed the country of origin.  This designation adopts the solution found in many national laws, including U.S. laws, with respect to “collective works” (a category, like joint works, that the Berne Convention generally leaves unaddressed) such as newspapers and encyclopedias.

In general, in the online environment, the location of the website or server from which a work is first disclosed to the public may lack the importance once taken for granted in the case of the place selected for the first publication of hard copies.  Because in the online context it is no longer appropriate to assume a significant relationship between the work and the terrestrial place corresponding to the virtual place of its initial disclosure, the relevant point of attachment should remain the nationality of the author.  In the case of multiple authors from multiple countries, the authors may themselves determine the place of most significance to their creative endeavor by designating a country of origin.  Alternatively, where a person or entity performs the coordinating role of a traditional publisher of a collective work, it is consistent with the goal of identifying the country with the most significant relationship to the creation and dissemination of the work to designate as the country of origin the country of which the coordinator of the collective work is a national or has its headquarters.