A love of history has always enlivened the legal scholarship of Bill Cornish. He has written and lectured on many topics, from the role of the jury, the law of restitution and across the spectrum of intellectual property law, but one is left with the impression that his first love has always been legal history, with a strong emphasis on economic and social developments. Hence, it is appropriate in this essay to take a historical starting point, and to consider the continuing contemporary relevance of an international convention that was first formulated in the century before last. This is the Berne Convention for the Protection of Literary and Artistic Works, which is one of the fundamental cornerstones of the modern intellectual property system. There are many issues here that are ripe for consideration, and any comprehensive examination of them is beyond the scope of this essay. However, there are several matters concerned with treaty interpretation that are now of considerable significance, illustrating the continuing relevance of an ‘ancient text’.

Before discussing these, however, some background is required.

A star is reborn (the comeback kid)

For a considerable part of its existence, the Berne Convention was essentially a static instrument. Beginning modestly, and even circumspectly, it had a vigorous adolescence and early adulthood, and then entered a period of little or no growth (unlike many middle-aged adults) and even faced the threat of substantial reduction (in the period 1960–1967).