Cheryl Foong

Country of Origin and Internet Publication: Applying the Berne Convention in the Digital Age

Online publication allows a work to be published simultaneously throughout the world to every country with Internet access. While it is certainly advantageous for the dissemination and impact of information and creative works, first publication of copyright works over the internet presents unique challenges. In particular, it brings to the fore the gaps in the Berne Convention’s country of origin provisions. In Kernel Records v Mosley, the Florida Southern District Court of the United States ruled that first publication of a work on the Internet via an Australian website constituted “simultaneous publication all over the world,” and therefore rendered the work a “United States work” under the definition in §101 of the U.S. Copyright Act, subjecting the work to registration formality under §411. This ruling is in sharp contrast with an earlier decision delivered by the Delaware District Court in Moberg v 33T LLC. The conflicting rulings of the U.S. courts reveal the problems posed by new forms of publishing online and demonstrate a compelling need for further harmonization between the Berne Convention, domestic laws and the practical realities of digital publishing. While a clearer consensus on what amounts to “simultaneous publication” in the digital age may be needed at the international level, this article proposes a pragmatic way forward, i.e. resolution at the national level through statutory interpretation by the courts in a way which reconciles the goals of the Berne Convention with the practical requirements of domestic law.