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Conundra of the Berne Convention Concept of the Country of Origin

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Conundra of the Berne Convention Concept of the Country of Origin Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2021 Conundra of the Berne Convention Concept of the Country of Origin Jane C. Ginsburg Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Intellectual Property Law Commons, Internet Law Commons, and the Public Law and Legal Theory Commons Recommended Citation Jane C. Ginsburg, Conundra of the Berne Convention Concept of the Country of Origin, COLUMBIA PUBLIC LAW RESEARCH PAPER NO. 14-684 (2021). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2733 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Conundra of the Berne Convention Concept of the Country of Origin Jane C. Ginsburg, Columbia University School of Law* Abstract This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a work exclusively made available over digital networks? In both situations, in the absence of treaty specification, the work may have multiple countries of origin. A plurality of countries of origin may be problematic because, under Berne art. 5(3) “Protection in the country of origin is governed by domestic law.” Berne minimum protections do not apply to local works in their countries of origin. As a result, the greater the number of countries of origin, the fewer the number of countries in which the work must receive the minimum Conventional coverage. Even where minimum protections may apply, variations in the country of origin can affect the calculus of copyright term under art. 7(8), the availability of coverage for works of applied art under art. 2(7), and claims to artists’ resale royalties under art. 14ter; in all those cases, the availability of protection turns not on national treatment, but on reciprocity with the country of origin. This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Under article 5(4), The country of origin shall be considered to be: * Thanks for excellent research assistance to Mary Kate Patterson and to Lydia Turnage, both Columbia Law School class of 2021, and for suggestions and corrections, to Prof. Sam Ricketson. 1 Electronic copy available at: https://ssrn.com/abstract=3773236 (a) in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection; (b) in the case of works published simultaneously in a country outside the Union and in a country of the Union, the latter country; (c) in the case of unpublished works or of works first published in a country outside the Union, without simultaneous publication in a country of the Union, the country of the Union of which the author is a national . Article 5(4) makes publication the principal point of attachment for determining the country of origin; article 3(3) defines published works as: 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. But, the definition further specifies: The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication. As we will see, this qualification will create significant ambiguity with respect to works communicated over digital networks, but not distributed in tangible copies to the public. Despite its detail, art. 5(4) leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a work exclusively made available over digital networks? In both situations, in the absence of treaty specification, the work may have multiple countries of origin. A 2 Electronic copy available at: https://ssrn.com/abstract=3773236 plurality of countries of origin may be problematic because, under Berne art. 5(3) “Protection in the country of origin is governed by domestic law.” Berne minimum protections do not apply to local works in their countries of origin. As a result, the greater the number of countries of origin, the fewer the number of countries in which the work must receive the minimum Conventional coverage. Even where minimum protections may apply, variations in the country of origin can affect the calculus of copyright term under art. 7(8), the availability of coverage for works of applied art under art. 2(7), and claims to artists’ resale royalties under art. 14ter; in all those cases, the availability of protection turns not on national treatment, but on reciprocity with the country of origin. I. Works with several co-authors from different Union countries: The Berne Convention acknowledges that some works will be co-authored, hence its provision for the calculation of the copyright term of joint works based on the death of the last surviving co-author.1 But the Convention does not address the attribution of a country of origin to joint works whose authors are nationals of different Union states. This omission will not cause difficulties where first publication occurs in a Union country; that country will clearly be the country of origin under article 5(4)(a). But problems will arise where the works remain unpublished or are first published in one of the few remaining non-Union, non-WTO countries2 (without simultaneous publication within 30 days in a Union state). 1 Berne Conv. art. 7bis. 2 Aruba, Eritrea, Kosovo, Marshall Islands, Palau, and Sint Maarten are neither Berne nor WTO countries. Curaçao, Ethiopia, Iran, Iraq, Somalia, South Sudan, Timor-Leste are not Berne signatories, and are not yet members of the WTO, but are observer countries still in the application process. See, WTO, Members and Observers, WTO.org, https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last accessed Jan. 22, 2021); WIPO, WIPO- 3 Electronic copy available at: https://ssrn.com/abstract=3773236 While Berne’s failure to provide explicit guidance gives rise to the problems, the Convention’s interstices may point toward a variety of solutions. One may suggest four alternative approaches to designating the country of origin for unpublished joint works. First, one might borrow from Berne’s approach to works simultaneously published in more than one Union country: where the countries of first publication have differing terms, article 5(4)(a) designates as the country of origin the country with the shorter or shortest period of protection.3 Accordingly, when co-authors’ countries of nationality provide for different terms, the country of origin of the unpublished work will be the Union country with the shorter or shortest term of protection. This approach could, however, have deleterious consequences for co-authors whose home countries have longer terms of protection than the country designated as the country of origin precisely because of its shorter (but still Berne-compatible) term. The rationale for choosing the shortest term appears to have been to ensure that the work fell into the public domain at the same time throughout the Berne Union, especially given the considerable disparities in the length of the copyright term in different Union states at the end of the 19th century.4 Without such a rule, authors (or, more likely, publishers) might have engaged in country-of-origin-shopping, that is, the simultaneous publication of a work in a Administered Treaties, Contracting Parties, Berne Convention, WIPOLex.WIPO.int, https://wipolex.wipo.int/en/treaties/ShowResults?search_what=C&treaty_id=15 (last accessed Jan. 22, 2021) 3 ibid. 4 The rule of the shorter term has been part of the Berne Convention since the original 1886 text. See WIPO, Draft Convention, Minutes of the Fifth Meeting of the Conference for the Protection of Authors’ Rights, Records of the International Conference for the Protection of Authors’ Rights Convened in Berne (1884), available on page 94 at: https://www.wipo.int/edocs/pubdocs/en/copyright/877/wipo_pub_877.pdf ; Report of the Committee, Second Conference in Berne, (1885), available on page 119 at: https://www.wipo.int/edocs/pubdocs/en/copyright/877/wipo_pub_877.pdf (“By giving preference to the system that made the term of protection depend on the law of the country in which publication had first occurred, the Committee also had to provide for the case in which such publication occurred in a number of countries in the Union at the same time, and it settled it by providing that the term of protection could not exceed that of the country in which the work fell into the public domain soonest.”).
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