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Convention mandates that if the author is not a national of the country of origin of the work for which he is protected under the Convention, he shall enjoy in that country the same rights as national authors '* Accordingly, under Berne, if a work is first published in an EU country (and not simultaneously published in another shorter-term Berne country, eg., the US) that author shall be entitled to the longer protection provided in the EC Term Directive.
However, if an author is not an EU national and the work is not first-published in an EU country, the rule of the shorter terni is mandatory.*' This results in preferential treatment for EU nationals whose works may have otherwise received rule of the shorter term treatment in EU countries if the work had been first published in a shorter-term country, for example, the United States
The European Commission emphasized this discriminatory result when adopting the Directive In the Explanatory Memorandum to the proposal for the Directive, the Commission stated its support for application of the rule of the shorter term against nonEU nationals and against works published outside the Community:
It is only natural that 'foreign' works and third country nationals should not be protected for a period longer than is considered appropriate by their own country Moreover, since Community works and nationals are not protected for as long a period in those countries as they are in the Community, comparing terms of protection is a way of ensuring reciprocity .'" If third countries are to be induced to improve their protection from the point of view of its duration, one should avoid granting them the long Community term unilaterally/"
As is evident, the Commission's goal in discriminating against non-EU nationals is to induce countries with deficient terms of protection— namely, the U S— to improve their protection. It should be noted, however, that despite this commentary, the text of the directive itself (as well as Berne) does not permit discrimination against non-EU nationals if the country of origin of the author's work is an EU country
An additional note should be made regarding the nationality of the author. Under the Berne Convention, "authors who have their habitual residence in [one of the countries of the Heme Union] shall, for the purpose of this Convention, be assimilated to nationals of
6*/rf at Art 50)
^'COM (92). suprn nolc 2 1 at 9 See also. Jchomin. siiprn noic 6 ;il H24
■'O/rfal 8
■"/(/. at 31.
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