Golan v. Holder: A Look at the Constraints Imposed by the Berne Convention

18 Pages Posted: 11 Oct 2011 Last revised: 19 Nov 2011

See all articles by Daniel J. Gervais

Daniel J. Gervais

Vanderbilt University - Law School

Date Written: October 11, 2011


One of the central issues in the Golan v. Holder litigation is the extent to which the United States had flexibility to tailor the protection of existing works that had fallen in the public domain when it joined the Berne Convention. This Essay argues that the Berne Convention obligates the United States as a Berne Union member to provide some degree of protection, but otherwise leaves wide latitude to set the conditions under which works in the public domain receive retroactive copyright protection. The Convention itself does not mandate that any particular level of protection be granted to such works because, as both the negotiating history and secondary literature show, the drafters of the Convention acknowledged that member states would face implementing constraints in their countries. Whether or not the United States recognized this flexibility when it joined the Convention, it is clear that Congress can grant a limited form of retroactive protection to works in the public domain in order to meet its international obligations and simultaneously protect the constitutional rights of third parties.

Keywords: Berne Convention, United States Copyright Act, implementation, Golan, retroactive protection

JEL Classification: K33

Suggested Citation

Gervais, Daniel J., Golan v. Holder: A Look at the Constraints Imposed by the Berne Convention (October 11, 2011). Vanderbilt Law Review, Vol. 64, p. 147, 2011; Vanderbilt Public Law Research Paper No. 11-47. Available at SSRN: https://ssrn.com/abstract=1942461

Daniel J. Gervais (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615 322 2615 (Phone)

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