This convention for the protection of Literary and Artistic
works was first adopted in 1886 and has undergone numerous
changes since then. As Woodmansee and Jaszi note, "In
the domain of international law the most unusual feature of
Berne (and one that it retains today in its sixth iteration,
the Paris Act of 1971) is the first Article, which provides
that signatory countries 'constitute a Union for the protection
of the rights of authors in their literary and artistic work."
This legal device makes the Berne Convention an agreement
with a cause, so to speak -- the cause of promoting and extending
authors' rights, however these may be secured in the national
laws of countries around the world." ("The Ethical
Reaches of Authorship," see also footnote 39) The most
recent amendments formally incorporated into the convention
took place in 1979 and preserve the intention of the treaty's
creators. The most recent edition of the Berne Convention
is accessible online at this site: http://www.wipo.int/clea/docs/en/wo/wo001en.htm.
Most relevant to our concerns is Article 15(4)(a), http://www.wipo.int/clea/docs/en/wo/wo001en.htm#P190_37184,
which deals with indigenous or communal authors' rights. WIPO
herein gives each nation permission to appoint someone to
represent the indigenous author and "to protect and enforce
his rights in the countries" that honor the Berne convention
(Berne). According to Article 15(4)(a):
[i]n the case of unpublished works where the identity of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
(emphasis added).
As such, the provision attempts to find an author on whom
to confer rights when no individual author or creator is readily
apparent. Accordingly, the provision appears pragmatically
helpful, but the author function remains at the center of
the legislation.
