WHAT IS WORK?
Which Law in Our Country Protects Intellectual Rights of Right Holders Over the Works?
Works are protected within the scope of the provisions of the Law on Literary and Artistic Works no. 5846 (“FSEK”) in our country. In addition, the works are also under protection through “The Berne Convention for the Protection of Literary and Artistic Works”, “Trade-Related Aspects of Intellectual Property Rights attached to the Agreement Establishing the World Trade Organization” (“TRIPS”), “WIPO Performances and Phonograms Treaty”, “WIPO Copyright Treaty” and “Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations” to which our country is a party as well.
What Is Work?
According to the FSEK, the work means any literary or artistic product bearing the characteristic of its owner, which is deemed a scientific and literary, musical, fine art or cinematographic works. As can be seen from the wording of the aforementioned Law, not every intellectual product is qualified as work, so first of all it shall;
a) bear the characteristic of the owner/originates from the owner (“Subjective Criteria”),
b) be fixed on a physical medium and
c) be included in one of the types of works listed in the Law (“Objective Criteria”).
For example, a family photo taken randomly, a restaurant menu, or formations in nature are not qualified as work on their own. For some works, especially scientific works -for example, a book with information about mathematics or physics – it may not always be easy to determine the characteristic of the author, in such case the effort and endeavor of the author in creating this work and the authenticity of the work are taken into account. Nevertheless, when examining a painting created by the famous artist Picasso, you will be able to understand that this painting bears the characteristic/fingerprint of Picasso, the founder of the art movement of painting called Cubism, and accept this painting as fine artwork.
What Are The Types of Works?
According to the FSEK, the types of works can be listed as follows;
1. Works of Science and Literature
a) Works that are expressed by language and writing in any form, and
b) Computer programs expressed in any form together with their preparatory designs, provided that the same leads to a computer program at the next stage,
c) All kinds of dances,
d) Written choreographic works,
e) Pantomime and similar theatrical works without dialogues,
f) All kinds of technical and scientific photographic works that do not have aesthetic qualities,
g) All types of maps,
h) Plans,
i) Projects,
j) Sketches,
k) Pictures,
l) Geographical or topographical models and similar works,
m) All kinds of architectural and urban designs and projects,
n) Architectural models,
o) Industrial, environmental, and theatrical designs and projects.
2. Musical Works
3. Fine Artworks
a) Oil paintings and watercolors, all types of drawings, patterns, pastels, engravings, artistic scripts and gildings, works drawn or fixed on metal, stone, wood or other material by engraving, carving, ornamental inlay or similar methods, calligraphy, silk screen printing.
b) Sculptures, reliefs and carvings,
c) Architectural works,
Handicraft and minor artistic works, miniatures and works of ornamentation, textiles, fashion designs,
d) Photographic works and slides,
e) Graphic works,
f) Cartoon works,
g) All types of personifications.
4. Cinematographic Works
What Is an Adaptation and What Are Its Varieties?
These are the works created by benefiting from another work but do not constitute an independent work pro rata to these works. For adaptation, permission shall be obtained from the author first. The types of adaptation are stated below as listed in the FSEK;
1. Translations,
2. Converting a work like novel, story, poem or play from these types to another type,
3. Converting musical works, fine arts, scientific and literary works into films or converting them into a form which is suitable for filming or for broadcasting by radio and television,
4. Musical arrangements and compositions,
5. Transforming fine artworks from one form to another,
6. Making a collection of all or the same type of one author,
7. Making a collection of selected works according to a specific purpose and in accordance with a specific plan,
8. Making an unpublished work ready for publication as a result of scientific research and study (ordinary transcriptions and facsimiles that are not the result of scientific research and study are excluded),
9. Annotating or commenting or abridging the work of another person,
10. Adaptation, editing or any modification of a computer program,
11. Databases. (However, this protection cannot be extended to the data and materials contained in the database.)
What Is a Computer Program, Is It Considered as a Work?
Within the scope of the Law on Literary and Artistic Works, computer programs are also accepted as works (in the category of science and literary works). According to the FSEK, a computer program means a set of computer instructions arranged in a way that will make a computer system carry out a special process or task and the preparatory work that will lead to the creation and development of such set of instructions.
Who Is the Author?
a) The author is the person who creates work with his/her intellectual effort and endeavor. The author of an adaptation (an intellectual product in a certain work form which is converted into another form; for example, a script is considered as an adaptation if a literary work in the form of a novel is converted into a theatre or cinema script which is another form of a literary work) and collection (for example, a database) is not the original author but the one who adopts it, provided that the original author’s rights are reserved. Therefore, the author of the adaptation shall first obtain the original author’s permission in order to benefit from the pecuniary rights of his/her work.
b) If a work is created by the participation of more than one person and constitutes an indivisible whole, the author is the union of the persons who created it. For example, if a large mural was completed by three painters in such a way as to provide integrity, the ownership of this work is the union of the painters who created it. In the case of cinematographic works, the director, the composer of original music, the scriptwriter, and the dialogue writer are joint authors of the work. For cinematographic works that are produced with the technique of animation, the animator is also among the joint authors of the work. The provisions regarding the ordinary partnership in the Turkish Code of Obligations shall apply to the union of authors.
c)If the work has a character that can be divided into parts due to its nature, it is the owner of that part that creates each part. For example, in the event more than one person create a modular furniture design that is a fine artwork collaboratively, each person is the author of his/her own part of the furniture modules of which he/she has personally created.
What Is the Duration for an Author to Exercise His/Her Rights on His/Her Work?
Moral and pecuniary rights on a work can be exercised for the lifetime of its author and 70 years after his/her death. At the end of these periods, the work becomes the property of the public. Legal heirs can exercise these rights (including the situations -such as the publication or modification of the work in a way contrary to the honor and dignity of the author, assessment of the authorship- specified in the third paragraphs of Articles 14, 15 and 16 of the FSEK with regard to moral rights) within a period of 70 years after the death of the author. From the point of view of moral rights, the law authorizes the enforcement officer to exercise the will when necessary. (FSEK Article 19)
What Are the Rights of an Author?
The author’s rights are divided into two sections such as moral and pecuniary rights. Moral rights are strictly adhered to the right holder and cannot be transferred. The author cannot waive the moral rights to be exercised, nor can he transfer and assign them by these inter vivos transactions. Moral rights cannot be included in the decedent’s estate and be made subject to testamentary disposal. Types of moral rights are stated herein below;
a) The authority to disclose the work to the public; The author’s right to disclose the work to the public at any place and time.
b) The authority to designate the author’s name on the work; The author’s right to request his/her name be designated on the work.
c) The authority to prohibit modification on the work; The author is entitled to prohibit modification to be made on his/her work by third parties.
d) Rights of the author against persons who own or possess a work; Under certain conditions and circumstances the author has rights -such as demanding that a person who owns the original version of a work cannot act on the work that would violate the rights of the author or demand to use the original of the work in an exhibition or to benefit for a certain period of time- towards the possessor or owner of the work to which it has transferred its physical property.
Types of pecuniary rights are also listed below;
a) Right of Adaptation; In order to create an adapted form of a work, the author’s permission is required. For example, a translation of a work cannot be made without the author’s permission, or a re-arrangement of that work cannot be made without the permission of the author of that work.
b) Right of Reproduction; The right to reproduce the original or copies of a work can be exercised only upon the permission of the author. The making of a second copy of the original of the work or the recording of the work on all types of devices now known or to be developed in the future enabling the transmission or repetition of signs, sounds and images, all kinds of sound and music recordings as well as the application of plans, projects and sketches of architectural works are deemed reproduction. The right of reproduction also covers the acts of loading, displaying, running, transmitting and storing a computer program (except for personal use).
c) Right of Distribution; Refers to the right of distribution of the original or copies of work through leasing, lending, putting up for sale or distributing in any other way, which again requires the author’s permission to conduct these actions.
d) Right of Performance; d) Refers to the right to exploit a work by performing it in such ways as reciting, playing, acting or displaying it on public premises either directly or by means of devices enabling the transmission of signs, sounds or images which again requires the author’s permission to perform these actions.
e) Right of communication of a work to the public by devices enabling the transmission of signs, sounds and/or images; e) The author shall have the exclusive right to communicate the original version of a work or its copies to the public by virtue of broadcasting by organizations that broadcast by wire or wireless means such as radio and television, satellite or cable, or by devices enabling the transmission of signs, sounds and/or images including digital transmission, or by way of re-broadcasting by other broadcasting organizations that obtain the work from such broadcasts.
The author has the right to permit or prohibit the sale or other distribution or supply of the work or its reproduced copies to the public by wire or wireless devices and the communication of the work to the public by providing access to it at a time and place chosen by natural persons.
How can the Author Exercise His/Her Rights?
The author may not transfer his/her moral rights to third parties as per legal regulation but can grant a license for these rights. Moreover, pecuniary rights may be transferred through a will, license or an agreement or to author’s heirs in accordance with inheritance law after the death of the author and may be made subject to any legal transaction and testamentary disposal (such as a will) and may be included in the decedent’s estate. The author may grant a license for his/her pecuniary rights reciprocally or complimentarily, whether or not limited to location, period, time, exclusive or non-exclusive as he/she may transfer them under the same conditions. Generally, agreements concluded with the authors regulate the licensing conditions of pecuniary and moral rights.
What Issues Should Be Considered In Particular While Drafting Agreements Regarding The Authorship?
a) The agreement shall be concluded in writing. (The written form requirement stipulated under Article 52 of FSEK as a condition of validity.)
b) It should be clearly stated which work/s is/are relevant with the agreement.
c) It should be clearly stated whether the rights on the work have been transferred or whether a non-exclusive license or an exclusive license has been granted.
d) Rights licensed or transferred shall be specified individually (in a form specifying transferred or licensed rights individually in case of an adaptation, performance, reproduction). (FSEK Art. 52)
e) If the agreement has any limits on location, duration and number, it should be specified individually.
f) It should be specified that the author is the sole and statutory right holder of the work, there is no encumbrance, such as a lien, etc. on the work, there is no restriction imposed on the author to transfer or license the rights and that the author will be liable -provided that the scope of liability is detailed- in case of third party claims violation of his/her rights related to the work.
g) It should be stated how the author and the transferee/licensee will act in case a third-party files a lawsuit against the transferee or the licensee claiming to be the legal right holder of the work.
h) The method, location and due date of payment for the pecuniary right arising from the work subject to the transfer or license should be clearly stated.
i) Except in the case of transfer, for example in the event rights arising from the work are licensed, it should be specified that when the agreement between the parties expires for any reason, the rights on the work shall revert to the author.
When Do Rights on The Work Arise?
The rights on the work shall belong (ipso iure) to the person who created the work at the time of creation. Authorship of the work covers pecuniary and moral rights, that are by their nature absolute thus enforceable against each and every person.
How Can The Author Prove That He/She Is The Legal Right Holder?
As a rule, the author can prove that he/she is the legal right holder of a work relying on all kinds of evidence including the witness. After the work is made public, it is easier to prove the authorship of the work than at a time prior to disclosing it to the public. Some presumptions regarding this matter are adopted under the law; for example, the person whose name or known pseudonym is given as the author of a work on the published copies of work after reproduction shall be deemed the author of the work unless otherwise proven . The same applies to someone whose name is stated on the original of fine artwork. (FSEK Art.11) For example, if the name of its author is specified on a published book, the author of that book is considered to be that person unless otherwise proven.
How Can the Author of a Work Not Yet Publicized Prove Their Ownership over the Work?
It is more difficult to prove that the author is the owner of his/her work before it becomes publicly available, since the author has been entitled to the ownership of the pecuniary and moral rights on his/her work since its creation. For this reason, some instruments have been developed for the authors to maintain and protect their authorship on their works;
a) The Ministry of Culture has two record and registration mechanisms which are discretionary and mandatory. Authors -especially within the scope of the discretionary record and registration mechanism- can record and register their works before this institution for a fixed price if they wish so.
b) Authors may have hard and/or soft copies of their works notarized before the Notary Public (this is not preferred because it is an expensive method.) or after duplicating a copy of their works, they can post them through PTT in an envelope to their home or business addresses or to third parties to whom they trust -provided that the envelope shall not be opened later- or send it via e-mail to themselves or a third parties to whom they trust or
c) Authors may protect their works by enjoying benefits of digital/electronic technology such as blockchain technology which has been emerging in the recent years -before making them publicly available- by stamping soft copies or audio and visual records which can be detected on the Internet with a digital time stamp on the online platforms such as Tasdix, Copyrobo and which are recorded with a specific date and time that enables authors to prove that they own the work in a way they have been viewed and uploaded. Works recorded with a digital time stamp are accepted as evidence before the courts and summoned to court files.
One of the above-mentioned instruments should be applied by the authors in order to prove their ownerships before making their works publicly available and conducting negotiations with third parties regarding their works or concluding license or transfer agreements. If these instruments have not been applied, a confidentiality protocol should be signed between the parties prior to commencing negotiations with third parties before making the work publicly available. In practice, -since the means of proof of authorship as mentioned in this paragraph has not been created in advance and no agreement was executed between the parties-, it is observed that many works were lost after conducting negotiations with third parties.
Is There a Registration Requirement for the Protection of the Work?
Since the authorship is acquired at the time of the creation of the work, its acquisition is not subject to the registration requirement as oppose to industrial rights such as trademarks, patents, designs. The process of record and registration that may be advocated before to the Ministry of Culture -except for certain types of works- is discretionary and is an instrument regulated by law in view of providing convenience in substantiating his/her authorship on the work. (FSEK Art. 13/2) Likewise, recording of the work with a digital time stamp, before making it publicly available, is also discretionary and recommended to the authors in view of providing convenience in substantiating their authorships on the works.
Is the Owner of the Physical Property of the Work Considered as the Author?
Having the original or physical property of a work does not mean that the rights on that work are also acquired. For example, owning a CD in which musical works are recorded means owning physical ownership of that CD and does not create authorship over the works fixed on the CD. Therefore, for example, the person who owns the physical property of a CD cannot reproduce the works fixed on the CD without the permission of the author.
Who Is the Legal Right Holder of the Work Created by an Employee?
he rights conferring from works which are created by civil servants, employees and workers during the execution of their duties shall be exercised by the persons who employ or appoint them; provided that the contrary may not be deduced from a special contract between such persons or the nature of the work. This rule shall also apply to the organs of legal persons. In other words, a person who is employed in a corporate or institution shall not have pecuniary rights such as reproduction, distribution, adaptation, performance, and communication to the public on the work of which he/she has created during his/her employment and in connection with his work. Without further need for any other condition or agreement, these rights shall be owned by the employer who employs him/her and instructs a concrete work to be done within a certain plan and schedule. However, moral rights arising from FSEK and tightly coupled with the owner such as the right to disclosure to the public, designate name and prohibition of modification will be held by the employee.
Who Has the Right on the Work Created by a Free-Lancer (“Self-Employed”)?
Free-Lancer is referred to as a person who provides external support to third parties for a fee and has expertise in a particular subject, regardless of being employed by any business or institution. Real or legal persons who receive services from these persons on a specific issue and within the framework of a plan, cannot own pecuniary rights directly and automatically on intellectual products (software, design, etc.) qualified as a work which may arise from this cooperation. For this reason, those persons whom we can identify as employers within the context of this business relationship should sign a contract of work with the free-lancer at the beginning of the work and obtain a license of moral rights while acquiring pecuniary rights on these intellectual products that may arise from the said contract. Otherwise, when a dispute arises between the parties over ownership of intellectual products, qualified as works, that may be created at the end of the work, the employer will have a difficulty in proving his/her right. In practice, this situation is experienced in some newly established entrepreneurships/Start-Ups. Especially in software-based entrepreneurships, if the owner of the software works on a free-lance basis independent from the entrepreneurship, the transfer of intellectual property rights to the entrepreneurship can be omitted, despite the fact that it is crucial for the future of that entrepreneurship.
Which Legal Remedies Can Be Sought by the Party Whose Moral and/or Pecuniary Rights Are Infringed?
a) The rights of the author or the holder of the related rights are recognized by law and they are absolute rights and enforceable against all. If these rights are infringed by third parties without the permission of the rights holders and where there are no reasons in accordance with the law, civil and criminal cases can be filed against them.
b) b) The person whose moral and/or pecuniary rights are infringed can file a lawsuit for the determination, prevention and suspension of infringement against the infringer before competent Intellectual and Industrial Property Rights Civil Courts of Istanbul, Ankara and Izmir; outside these provinces, If there is more than one Civil Court of First Instance, before the Civil Court of First Instance numbered “3”; If there is only one Civil Court of First Instance in the province, before this court. (FSEK Art. 66-70) For this, there must be a pending unjust act that has already been committed. In order to initiate these actions, it is not required that the infringing party’s fault exists or has been proved. If the infringing act is committed by an employee or representative of the business, it is also possible to initiate an action against the business owner.
c) Anyone whose moral or pecuniary rights are in threat of being infringed may bring up an action to prevent probable infringement. The same provision shall apply in cases where the infringement is likely to continue or recur. (FSEK Art. 69)
d) If there is an pending act of infringement, but the person whose rights are infringed does not have adequate evidence to prove this matter of fact;
i. In order to prove the existence of this infringement and prevent the damage from reaching greater amounts, it should be preferred to request from civil law court to determine the evidence before taking an action in order to prevent spoliation of evidence and to determine unlawful use officially by requesting preliminary injunction decision (confiscation of counterfeit products -which are subject to the infringement or crime- to be seized at the premises where they have been discovered).
ii. When the petition for assessment of evidence is submitted, if the infringement takes place in a physical location, the court and the board of experts -formed by the court to determine whether the counterfeit product subject to the infringement is located at the address shown and the characteristics that may infringe the work- obtain one or more samples by going to the place (like a warehouse) where the pirate product is sold, displayed or held for commercial purposes without notifying the other party; if the infringement is carried out only over the Internet, then the assessment of evidence is made on the Internet by a technical expert appointed by the court through accessing the websites specified in the assessment petition of evidence by the author.
iii. After the evidence substantiating the existence of the infringing act is collected, the court is requested to issue a preliminary injunction in order to cease the infringing act that may cause irreparable damage and to cease the infringing act during the course of the infringement action upon seizure and confiscation of pirate product/s.
iv. If the court finds this request fair, it may issue a preliminary injunction decision without issuing any warrant or against the warrant to be indicated in accordance with the damage (the amount of the warrant is determined by the court in order to compensate the possible damage to be incurred by the counterparty due to the execution of preliminary injunction, in case the lawsuit is decided against the claimant after the execution of this injunction decision). (FSEK Art. 75)
v. If the infringement is carried out merely over the Internet, the execution of the injunction is made through websites -where the infringement shown by the author occurs- by removing the content subject to the infringement or preventing access. In this regard, a warrant is written to the Union of Access Providers.
e) If the author has already sufficient evidence proving the infringement, legal action may directly be filed with the request of preliminary injunction decision rather than filing a petition for an assessment of evidence. In such a case, if the court rules a preliminary injunction decision without notification and holding a hearing, it is necessary to request that the defendant not be notified before the execution of this decision.
f) If the request for a preliminary injunction was made before filing the main action and the injunction was decided by the court, the execution of this decision (before the Court or the Bailiff Office) shall begin within one week from the date of notification of the decision or reading the said decision before the claimant, and it is obligatory to file the case on the merits and have the official, who has enforced the decision, to submit the decision into the file and receive a document in return within two weeks following the enforcement of this decision (for example, filing an execution proceeding). Otherwise, the injunction shall be ceased and released by itself without any further action. (CCP Art. 389-399)
g) Since the act of infringement is also considered to be a crime according to the FSEK, an application can be made to the public prosecution office by filing a complaint in order for the perpetrators to be sentenced for this crime. In such a case;
i. In the petition of the complaint, a decision regarding the confiscation protection measure should be requested from the public prosecution office. (FSEK Art. 71)
ii. Upon the complaint, the Public Prosecutor carries out the necessary actions to take the confiscation protection measure regarding the property subject to crime in accordance with the provisions of the Code of Criminal Procedure numbered 5271.
iii. The public prosecutor may also decide, if necessary, to cease the activity, limited to the reproduction of works that are alleged to have been illegally reproduced.
iv. However, this decision is submitted to the approval of the judge within twenty-four hours. A decision not approved by the judge within twenty-four hours shall become null and void. (FSEK Art. 75)
v. If the infringement is carried out merely on the Internet, the execution of protection measures is made on the Internet by removing the content subject to the infringement or by preventing access. In this regard, a warrant is written to the Union of Access Providers.
vi. If the public prosecutor concludes that the action subject to the complaint constitutes a crime at the end of the investigation process, the criminal case is filed against those who infringed before competent Intellectual and Industrial Property Rights Criminal Courts of Istanbul, Ankara and Izmir; outside these provinces, if there is more than one Criminal Court of First Instance, before the Criminal Court of First Instance numbered “3”; if there is only one Criminal Court of First Instance in the province, before this court.
h) A person whose rights have been infringed may claim from who have infringed his/her material and/or moral rights, up to three times the amount that could have been demanded if the right had been granted by contract or the current value which shall be determined under the provisions of this Law. (FSEK Art. 68) If the conditions are met, the person whose right has been infringed may claim the profit obtained in addition to the material and moral indemnities from the infringers due to their torts. (FSEK Art. 70) In this case, the amount requested shall be deducted pursuant to Article 68.
i) In case debt and compensation claims subject to the payment of a certain amount of money, which will be filed based on the FSEK, arise from the business organization of one party, it is necessary to bring forward the file to the mediator before the lawsuit is filed, otherwise the compensation lawsuit to be filed will be
j) The parties may agree at each stage of the lawsuit and the author may drop his complaint while the criminal investigation is pending or until the trial is over.
What Does a Pirate/Counterfeit Good Mean?
Goods reproduced from an original literary or artistic work directly or indirectly without permission of the author or upon exceeding the given permission are pirate goods and the sale of these goods constitutes both an infringement of pecuniary rights and a crime. For example, cartoon character Mickey Mouse printed T-shirts and other products produced without permission of the author are fallen within the context of pirate/counterfeit good. Right holders may initiate all legal remedies envisaged in the relevant section of infringement provisions against these products including retention at customs.
Is It Possible to Stop Pirate Goods at Customs?
The requisite precautionary measures for the protection of the literary and artistic works at customs envisaged in the context of the FSEK is regulated under Article 77 of Customs Law numbered 4458 referring to the Article 57 of the same Law. Accordingly, in the course of importation or exportation of the pirate goods infringing the rights on the work, Article 57 of the Customs Law No. 4458 and the provisions of the Customs Regulation shall be enforced. Accordingly as regards the rights falling within the scope of Law on Literary and Artistic Works customs clearance of the goods that infringes the rights of the right holder will be stopped at the request of the right holder or its representative or if there is clear evidence that the goods in question are counterfeit branded or comply with the description of pirate goods subject to copyright protection will be stopped ipso iure by the customs authorities. The decision to stop is notified to the importer or the right owner or his representative and subsequently if the conditions stipulated by the provisions of the Customs legislation are fulfilled, confiscation, destruction and other actions are carried out in accordance with the preliminary injunction decision of the judge of the civil lawsuit to be filed for the prevention of infringement of the work.
What Can Be Done to Resolve Online Infringement of Rights Arising from Work?
In Turkish law, the “Notice-Take Down Method” incorporated to the law with Additional Article 4 of the FSEK applies to infringements of works conducted via online medium. According to the said provision, the author must first contact the content provider that produces and submits the relevant data for use on websites and request that the content subject to infringement be removed within three days. If the content provider does not comply with the rights holder’s requests within three days and continues its infringing activities, the author may apply to the Public Prosecution Office this time requiring that the service being provided to the content provider persisting in the violation be suspended within three by the service provider. The service being provided to the content provider shall be restored, if the violation is ceased. At this point, it is important to state that the application of the “Notice-Take Down Method” does not prevent the author from exercising his rights for material and moral compensation.
What Are the Legal Responsibilities of Content, Access and Hosting Providers In Case of Infringement of Rights Related to a Work?
In accordance with the Law on Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of Such Publications numbered 5651 Internet actors also have certain responsibilities. Pursuant to Article 4 of the relevant Law, the content provider is responsible for any content that it makes available on the Internet. This means that if a program is allowed to be downloaded on the Internet without the permission of the author, the content provider may be liable for infringement. Although the access providers are not obliged to check whether the contents of the information accessed through them are unlawful and whether they may arise any responsibility pursuant to Article 6/2 of the same law they will be held responsible in cases where they do not block access in the event they are notified of the illegal content published by any user according to Art. 6/1-a. The same obligation applies to hosting providers whereas it is possible to file a lawsuit against them pursuant to Art. 5 if the illegal content is not banned from broadcasting.
