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(b) Rule of the shorter term
One exception to the principle of national treatment in the Berne Convention is the optional "comparison of terms" or "rule of the shorter term "^^ The rule of the shorter term permits Berne signatory countries to deny protection for works which have fallen into the public domain in their country of origin— even if the work would not be in the public domain under that country's duration rules
Nearly all EU countries have adopted the rule of the shorter term;" however the US has not Thus, most EU countries discriminate based on nationality of the author and/or country of origin of a work Therefore, works created by US authors receive rule of the shorter term treatment in most EU countries unless the work was first published in a (nonU.S.) Beme-signatory country. By contrast, if a party is seeking to enforce copyright in a foreign work in the United States, the full term of U S duration will be granted to that foreign work, regardless of where the work was first published and regardless of the nationality of the author
2 Determining the "country of origin"
To analyze the duration of protection a work will be accorded in non-U. S. Berne signatory countries, therefore, it is essential to determine the country of origin of a work. The rules for determining the country of origin are provided in the Berne Convention, and are based on whether a work has been "published."
Article 5 (4) of The Berne Convention defines the country of origin of a work as follows:
(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;
^^Berne Convention, stipro note 1.1 nt An 7(8)
2'COM (92) 33 final SYN 395, C 92/6 OJ al p. 30 (1992) Ihcreinafter COM (92)|
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