US adherence to the Berne Convention in 1989 has taken a beating on this blog and elsewhere. I disagree with that criticism and will explain why. In short, I think the impact of the Berne Convention on U.S. law is not well understood and that post-1989 changes are wrongly influencing our perceptions of the convention.
The most fundamental point is that Berne is a convention for foreigners. This means Berne does not require a country to do anything for its own authors. We could still have renewal and mandatory notice for works of U.S. origin if we wanted to. The two-tier situation in Section 411(a) which requires pre-infringement registration (or rejection) only for U.S. works illustrates this point. And Berne of course only goes as far as its terms even for foreigners, meaning concretely that we can impose formalities on remedies not required by Berne. And we do: Section 412 conditions awards of attorney's fees and statutory damages on pre-infringement registration, even though registration is a formality otherwise prohibited by Article 5(2).
Berne says nothing about many of the important issues in copyright: it doesn't influence how to determine originality, authorship, substantial similarity, or fair use for starters. It doesn't even cover sound recordings. It doesn't have anything to say about whether caching is the making of a copy (although the U.S. strove to include this in the WIPO Treaties); it doesn't say anything about compulsory license terms or rates or whether an over-the-air radio station that is simultaneously webcast is subject to compulsory licensing. It doesn't say anything about reverse engineering of software or interoperability. And the term of protection it requires is life of the author plus 50 years, not life plus 70.
Alot has happened since 1989, including the WIPO Copyright Treaty, which is a special agreement under Article 20 of Berne. That treaty does obligate the U.S. to have anti-circumvention measures and copyright management information provisions. These obligations became the basis for the DMCA provisions and their presence has led opponents to condemn Berne. I think that is unfair for two reasons. First, the treaty provisions do not spell out the details. But more importantly, the U.S. was in the vanguard in pushing for their inclusion in the treaty. The inclusion was then used as justification for the domestic legislation (we have to do it, the treaty requires us to). That is, of course, sophistry: the only reason there is a treaty obligation is because we wanted one.
The fault (if there be any, a partisan determination) lies not with Berne then, but with U.S. policy. We wanted to join Berne so that we could have a seat at the international table. We do have a seat and we have been using it. But we shouldn't delude ourselves into thinking that we are in an EU situation where Brussels is calling the shots for national governments. The shots being called are ones we want, so the blame or praise begins and ends at home.