15.1. This goes back to the Convention's beginning (text of 1886). It deals with the persons who are entitled to bring copyright actions. Two additions were made in Stockholm (1967), one as to the makers of films, and the other as to folklore.
Article 15, paragraph (1) General Rule
(I) In order that the author of a literary or artistic work protected by this Convention shall, in the absence of proof to the contrary, be regarded as such, and consequently be entitled to institute infringe¬
ment proceedings in the countries of the Union, it shall be sufficient for his name to appear on the work in the usual manner. This paragraph shall be applicable even if this name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his identity.
15.2. The Convention does not define "author" but establishes a pre¬
sumption that it is he who is entitled to bring action to assert the copy¬
right in the work. It is enough for this purpose for his name to appear on the work in the usual manner. The courts are left to give precise meaning to this general expression. If an alleged infringer wishes to show that the author is not the copyright owner, he must prove it.
15.3. The paragraph applies even to pseudonyms if they leave no doubt as to the authors' identities (compare Article 7(3)). The question is one of fact for the courts.
15.4. Note that the Convention merely says that, unless the contrary is proved, the author is the person whose name appears as such on the work. It goes no further and thus leaves member countries free to make their own rules on the subject. This is of some importance in connection with works made in the course of their creator's employment by someone else (whether an individual or a legal entity) and with commissioned works. The Tunis Model Law offers solutions which take into account both Latin and Anglo-Saxon legal theories.
94 WIPO — Guide to the Berne Convention
Article 15, paragraph (2) Cinematographic Works
(2) The person or body corporate whose name appears on a cine¬
matographic work in the usual manner shall, in the absence of proof to the contrary, be presumed to be the maker of the said work.
15.5. This provision, introduced during the Stockholm Revision (1967), completes the rules governing films. (See also Articles 2(1), 4, 5(4) (c), 7(2), 14 and 146/5.)
15.6. Note the words "whose name appears on" the work. This does not mean that the work must be fixed in some material form. By Arti¬
cle 2(2) the question of fixation is left an open one. This paragraph creates the presumption whether the film is fixed or not.
Article 15, paragraph (3) Anonymous and Pseudonymous Works
(3) In the case of anonymous and pseudonymous works, other than those referred to in paragraph (I) above, the publisher whose name appears on the work shall, in the absence of proof to the contrary, be deemed to represent the author, and in this capacity he shall be entitled to protect and enforce the author's rights. The provisions of this paragraph shall cease to apply when the author reveals his identity and establishes his claim to authorship of the work.
15.7. This presumption in favour of the publisher does not go so far as to deem him the author; he is merely presumed to represent the author—
to possess a kind of power of attorney to bring action to enforce rights in the work. Although the author's identity is, by definition, unknown, his copyright must be respected. The Convention charges the publisher with ensuring that respect.
15.8. The presumption of course ceases to operate when the author reveals his identity and himself asserts his rights.
Article 15, paragraph (4) Folklore
[4)1 a I In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.
Ih, Countries of the Union which make such designation under the terms of this provision shall notify the Director General by means of a written declaration giving full information concerning the authority thus designated. The Director General shall at once com¬
municate this declaration to all other countries of the Union.
15.9. The main purpose of this provision is to cover works of what is called "folklore" although the expression, very difficult to define, is not used in the Convention. It is the second of the Stockholm (1967) addi¬
tions, confirmed by the Paris Revision (1971).
15.10. The paragraph lays down several conditions: (i) the work must be unpublished in the sense of Article 3(3); (ii) its author must be unknown:
folklore is, by definition, attributable to no particular author. The names of those responsible for it are lost in the mists of time; (iii) there must nevertheless be every reason to believe this unknown author to be a national of a given Union country; the Convention creates a sort of presumption.
15.11. If these three conditions are fulfilled, an authority appointed by the country in question may, like the publisher of an anonymous work (paragraph (3) above) bring action to enforce the copyright in all Union countries, including that of the work's presumed author. It is a matter for this authority to prove the case and satisfy any court before which an action is brought on such matters as the grounds for presuming that the author is or was a national of the country in question.
15.12. The paragraph follows the usual pattern regarding notice: the country appointing such an authority must notify the Director General of WIPO giving full information. The latter passes the information on to all the other Union countries.
15.13. It was agreed at Stockholm (1967) that works by unknown au¬
thors were a particular example of anonymous works. Thus, if the work
96 WIPO — Guide to the Berne Convention is published, it is the publisher who brings action and there is nothing to stop the legally appointed authority being such publisher. Term of pro¬
tection is governed by Article 7(3).
15.14. By applying the same principles to unpublished works by un¬
known authors, and by allowing for the bringing of actions by state- appointed authorities, the Convention offers to its members, and particu¬
larly to developing countries whose folklore is part of their heritage, a means to exploit it.
15.15. It is to be noted that the Tunis Model Law contains provision for an adequate protection of folklore.
ARTICLE 16