phonograms are protected if the producer is a national of a Convention country; if it was first fixed in a Convention country; or if it was first or simultaneously published in such a country (Article 5); and
broadcasts are protected if the broadcaster’s headquarters are situated in a Convention country; or the broadcast was transmitted from a transmitter situated in a Convention country (Article 6).
(For further details on the points of attachment, see my Primer on International Copyright and Related Rights, page 31ff.)
Overall, these points of attachment under Berne and Rome seem much more sophisticated and detailed that the corresponding provisions in Article 7(5) of the draft Directive. Paraphrasing Article 7(5), the draft Directive does not apply to works or other subject-matter of third country nationals, unless such non-audiovisual works or phonograms were first published or, if unpublished, first broadcast in a Member State, or unless such audiovisual works are produced by producers having headquarters or habitual residence in a Member State. Even without analyzing all modalities in details, we can see that if the intention is that the Directive should match the points of attachment of the international Conventions and Treaties, as is suggested by the reference to ‘international comity’, it errs to both sides.