In such cases, the rule of the shorter term makes allowance for reciprocity in exception to the normal national treatment.
The Berne Convention also states in article 5(2) that the enjoyment and exercise of copyright ... shall be independent of the existence of protection in the country of origin of the work.
A WIPO study in 2011 recommended that «The difficulty of the rule of the comparison of terms applicable to the duration for protection, as provided by Article 7(8) of the Berne Convention, should at least be assessed».
[75] The BCIA made clear that within the U.S., only U.S. copyright law applied, and that U.S. copyright law, as amended by the BCIA, implemented the requirements of the Berne Convention (although it did not implement §18(1) of the Berne Convention, a deviation that was corrected by the Uruguay Round Agreements Act (URAA) in 1994).
Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto.
A notable pre-Berne American case involving the rule of the shorter term was Hasbro Bradley, Inc. v. Sparkle Toys, Inc. (780 F.2d 189 (2d Cir 1985)).
Hasbro was distributing Japanese action figures in the U.S. under an exclusive license and claimed copyright on these toys.
William F. Patry has opined that the judge mistakenly concluded that the U.S. was required to grant copyright on these toys.
The Uruguay Round Agreements Act and U.S. statutes did not, and had never, offered protection to these works, and the fact that they were not under copyright in the UK as of 1996 was completely irrelevant.
These treaties remained effective even after the United States Copyright Act of 1976 unless "terminated, suspended, or revised by the President".
[82] Germany extends the non-applicability of the rule of the shorter term to all members of the European Economic Area in §120 of its Urheberrechtsgesetz.
In a case decided on October 7, 2003 by the Oberlandesgericht of Hesse in Frankfurt am Main, the court ruled that a U.S. work that had fallen in the public domain in the U.S. was still copyrighted in Germany.
The Treaty instituting the European Community, which in its original version became effective in 1958, defined in article 7, paragraph 1, that within the union, any discrimination on grounds of nationality was prohibited.
[87]and clarified that this non-discrimination clause was not about differences between national laws, but to ensure that in any EU country, citizens and foreigners from other EU countries were treated equally: Article 7 is not concerned with any disparities in treatment or the distortions which may result, for the persons and undertakings subject to the jurisdiction of the Community, from divergences existing between the laws of the various Member States, so long as those laws affect all persons subject to them, in accordance with objective criteria and without regard to their nationality.
[88]In 2002, the ECJ then ruled in the Puccini case (or La Bohème case) that the non-discrimination clause was even applicable to nationals of EU member countries who had died before the EU came into existence, and it also explicitly reiterated that the comparison of terms was a violation of said non-discrimination rule.
[89] This case was about a performance of the opera La Bohème by Puccini by a state-owned theatre in Wiesbaden in the German state of Hesse in the seasons 1993/94 and 1994/95.
Domestic works at the same time enjoyed a copyright term of 70 years after the authors death in Germany.
[90] The Federal Court of Justice of Germany had doubts about whether the non-discrimination clause could be applied to authors deceased before the EU existed and referred the question to the ECJ, who fully confirmed the plaintiff's reading.
[89] The court concluded that The prohibition of discrimination ... precludes the term of protection granted by the legislation of a Member State to the works of an author who is a national of another Member State being shorter than the term granted to the works of its own nationals.