Simultaneous Internet Publication and the Berne Convention
Dombkowski, Chris, Santa Clara Computer & High Technology Law Journal
Table of Contents I. Introduction II. Background A. The Berne Convention 1. Territoriality & National Treatment Under the Berne Convention 2. Absence of Formalities under the Berne Convention B. The United States Implementation of the Berne Convention 1. Notice and Registration before the Berne Convention Implementation Act 2. Notice & Registration after the Berne Convention Implementation Act 3. From "Berne Convention Works" to "United States Works" III. Registration and Foreign Works A. Statutory Framework 1. Registration for Any "United States Work" 2. Definition of "United States Work" 3. Exclusive Right of Distribution 4. Definition of "Publication" B. Internet Publication 1. How Material Objects Change Hands on the Internet 2. What Constitutes Distribution and Publication on the Internet? a. Early Decisions: Distribution Occurred When Copies Were Made Available for Download b. Early Decisions: Distribution Occurred When Copies Were Sold to the Public c. Early Decisions: Publication Occurred When Copies Were Made Available d. Publication--In Violation of the Distribution Right--Occurred When Copies Were Offered for Further Distribution e. The Modern Trend: Violation of the Distribution Right on the Internet Requires Actual Distribution 3. Does Internet Publication Constitute Global Simultaneous Publication IV. Compliance with Berne Convention A. U.S. Copyright Law Violates the Berne Convention B. Possible Solutions 1. Eliminate the [section] 411(a) Registration Requirement 2. Change the Definition of "Publication" 3. Change the Definition of "United States Work" V. Conclusion
Over the last twenty years, the commercial development of the Internet has led to an age of unprecedented information sharing. The Web provides an incredibly immersive and interactive platform for knowledge sharing. Perfect copies of images, videos and sound recordings can easily be downloaded, reproduced and redistributed to millions of people around the world. For the first time in history, authors are empowered to share their creative genius directly with the world and doing so in a manner that is entirely consistent with the purpose of copyright--"to Promote the Progress of Science and useful Arts." (1)
Not surprisingly, the rapid expansion of the Internet has outpaced the evolution of U.S. copyright law. The two principal legal instruments governing copyrights--the U.S. Copyright Act and the Berne Convention--were drafted and enacted prior to widespread use of the Internet. The ease with which works are now published, downloaded, copied, and distributed would have been unimaginable to the drafters of today's Copyright Act.
The ability to publish works on the Internet has resulted in unintended consequences. In particular, the definition of "United States works" in [section] 101 of the Copyright Act is outdated in the Internet age. Specifically, when foreign works are "published" on the Internet they are "simultaneously" published in the United States. As a result a foreign work is a "United States work" according to the present definition. As a United States work, the work is subject to the registration requirement of [section] 411(a). Therefore, the copyright holder must register the work with the U.S. Copyright Office prior to filing a civil action for copyright infringement. As this Article will discuss, the U.S. registration requirement of [section] 411(a) is an impermissible formality which violates the Berne Convention.
In restoring compliance, we must consider what works of foreign origin should be deemed "United States works" upon simultaneous Internet publication. This Article recommends that works of foreign origin should still be included in the definition of "United States works" when the copyright holder actively solicits customers in the United States via the Internet. …