In Article 27 of Universal Declaration of Human Rights dated 1948, it is stated that “Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” In this respect, copyright emerges as a phenomenon that needs to be protected by States with legal regulations to be made.
Copyright is a legal term used to illustrate the rights that creators have over their literary and artistic works. Although exhaustive lists of works being subject of copyright protection are mostly not to be found in legislation around the world, it can be asserted that copyright protection extends to literary, musical or artistic works, sound recordings, movies, computer programs, broadcasts, cable programs, advertisements, maps and technical drawings. The owner of copyright is the author, meaning the person who creates the work. The rights are granted exclusively to the copyright owner to reproduce the material, and for some material, where applicable and relevant, the right to perform or show the work to the public. Copyright entitles the copyright owner to prevent others from reproducing or communicating their work without the owner’s permission and to sell these rights to someone else.
Copyright protection does not extend to ideas, concepts, styles or techniques. For instance, copyright cannot protect any idea for a book or movie, but it can protect a script for the movie or even a storyboard for it.
In Turkish Law, copyright protection is regulated within the Code of Intellectual and Artistic Works numbered 5846 (“CIAW”).
Definition of Work
As stated above, the exhaustive list of the works covered by copyright cannot be founded in legislation, but it can be outlined in general terms. CIAW classifies these works under four main sections; namely, scientific and literary works, computer programs and databases, works of art, and musical works. Scientific and literary works include but are not limited to novels, stories, poems, scripts, dances, scientific photographs, maps, plans, projects, sketches, illustrations, architectural models, and town-planning schemes.
All computer programs and databases can be covered by copyright, however, ideas or principles forming the basis of an element of computer programs and databases are not regarded as works, and accordingly cannot be covered by copyright. Watercolor and oil paintings, any kind of pictures, patterns, engravings, ornamentations, calligraphy works, sculptures, handiworks, fashion and textile designs, photographic works, and comics exemplify the works of art covered by copyright.
Definition of Author
Within the context of copyright protection, author is the person who created the work. If a work formed through the combined efforts of more than one person can be separated into different sections, then each of the persons having created the said work is regarded as the author of the section he created. Otherwise, (i.e. if the said work cannot be separated into different sections) the author of the work is the union of those having created it. Technical services or aids regarding details which were provided in the process of the creation of the work do not grant any authorship to those having provided these services.
Authors of the works covered by copyright are generally real persons. A legal entity also can be an author of a work and apply to the Directorate General of Copyright (“Directorate”) for the registration of its copyright on the condition that the employees working with a contract of employment within its body create the relevant work in the process of executing the labour they have been assigned to.
If a work has been created by a real person or a legal entity on the basis of a contract, then there is no authorship but only right ownership over the created work. Accordingly, in this case, the owner of the work cannot apply for the arbitrary registration of the copyright, since there is no copyright to be registered. But notwithstanding this, financial rights are owned and used by those having taken over these rights. In other words, the non-existence of a copyright does not hinder the use or application of the proprietary rights.
Emanation and Registration of Copyright
Works covered within the scope of CIAW benefit from copyright protection commencing from the moment of creation thereof. There is no need or requirement to register the work before an official authority; likewise, for the protection of copyright, the relevant work is not required to be certified. However, Turkish law allows some legal actions to be taken for the purpose of protecting the copyright over the relevant work, and specifically, for providing a convenience facilitating the determination of right ownership over the work.
Firstly, copyright owner may register his right at his own discretion. Such a registration serves the purpose of establishing a proof regarding the right ownership over the work. This method, the registration of copyright, is a procedure based upon declaration, and does not function as an establisher of copyright. It is not possible for the ideas to be registered within this method; however, when ideas are embodied in a form of work that is covered by copyright, then such works can be registered.
The application for the registration of a copyright must be submitted to the Directorate. Upon an application for the above-stated arbitrary registration, an official document is given to the applicant showing the information of the copyright owner and the work which has been registered. In case the work registered arbitrarily becomes the subject of a dispute, upon the request made by the court having the case, a copy of the aforementioned official document is submitted to the relevant court by the Directorate. However, it should be reiterated here that this document does not grant any right to the copyright owner, but it only functions as a proof of the existence of copyright.
In addition to the above method, the copyright owner may also follow a procedure before a notary public. In this option, the owner of the work should prepare a document stating that the has created the relevant work and is the owner of the copyright over it; and then this document can be certified by notary public. As an alternative method, the notary public itself can also draft such a document upon the verbal statements of the copyright owner. Nonetheless, as is the case with the official document given upon the application for arbitrary registration, the document certified or drafted by a notary public in this option does not grant any right to the copyright owner, but is a mere proof of the existence of copyright.
In Turkish law, the copyright owned by the author of a work is effective on whole work and any part thereof. In this respect, the author can practice his copyright, depending on his own wish and will, in matters pertaining to both the whole work and parts of it. The most essential right within the scope of copyright is the right to determine the style of the work, and to decide whether a work shall be publicized, in case of publication, the date of publication. In this regard, only the author of a work can provide information about a work which has not been partly or fully publicized or introduced with the outlines thereof. The author of a work has also the right to prohibit the publication of his work by any means in advance. Any agreement made for the purpose of renouncing such a right is regarded as null and void.
When a work is to be publicized, the author has the right to determine the title and/or the name of the work. In addition to this, if the relevant work is a piece of fine art, the name or the sign of the author must be shown on the copies of the work. Furthermore, in such cases, it also must be shown on the copy that the relevant piece of art is the copy of the original work. Unless the consent of the author is obtained, no abbreviations, supplementations, or alterations in the work and also regarding the name of the author can be made.
If the original version of the work is in the lawful possession of a third party, the author of the work has the right to request to utilize the original version for a temporary period of time. The proprietor of the original version of the work may use his right to dispose in accordance with the provisions of the agreement made with the author. However, the proprietor cannot deform or obliterate the work, and accordingly cannot infringe the rights of the author.
CIAW also regulates the financial rights of the author in connection with the copyright. Financial rights, within the scope of CIAW, include five distinctive right. First of these is the right of adaptation. Pursuant to Article 21 of CIAW, adapting a work and accordingly any benefit resulting from such an adaptation falls within the boundaries of the copyright of the author. Secondly, the right to reproduce a work, with any kind of method, as a whole or partly, directly or indirectly, temporarily or permanently, is exclusively belonged to the author. The third financial right within this scope is the right of distribution. In this respect, the exclusive right to rent, lend, put up for sale or distribute in any method or way, the original copies of a work, belongs to the author. Fourthly, the right to exploit a work by performing it in such ways as reciting, playing, acting or displaying it in public premises either directly or by means of devices enabling the transmission of signs, sounds or images belongs to the author. Lastly, the author has the exclusive right to communicate the original version of a work or its copies to public by way of broadcasting through 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 through other broadcasting organizations that obtain the work from such broadcasts.
Term of Copyright Protection
In Turkish law, copyright is protected during the life-time of the author and for 70 years commencing from the date of death of the owner. The term of protection of the works that have become public after the death of the owner is 70 years commencing from the date of death.
Where the author is a legal entity, this term is 70 years commencing from the date of publicity of the work. In case the author of the work is indefinite, the term of protection is 70 years commencing from the date of publicity of the work. In any case, the term of protection does not commence as long as the work remains unshared with public.
Upon the expiry of the term of copyright protection, financial rights owned by the author terminate. Accordingly, such works of which term of protection has expired can be freely used without a need to take the consent or permission of the author.
CIAW regulates what can be claimed by the author from the court in case of a copyright infringement. First of all, the author can request the court to detect whether the actions in question infringe the relevant copyright. If the actions in question are found to be infringing the copyright, then the author may request the prevention of the actions giving rise to the probable or current infringement. The author may also request an interlocutory injunction from the court for the purpose of preventing the infringement of his copyright. In addition to these claims, the author can also request to be indemnified for the pecuniary loss and intangible damages. Pursuant to the relevant provisions of CIAW, those having infringed a copyright are obliged to indemnify the copyright owners. Especially if the reputation of the copyright has been negatively affected due to the actions taken by the infringer, the copyright owner may request further indemnification for the said intangible damages.
The products infringing the copyright and the devices, machines and tools that have been and/or are used to manufacture these products can be confiscated in a manner that such a confiscation does not hinder the manufacture of other products being irrelevant to the infringement in question. Furthermore, the author can also request the court to grant him the proprietary right of the confiscated products.
The court may decide to take precautions to prevent further infringements as well. These precautions may appear as the deformation of the confiscated products, devices, machines, and tools, erasure of the signs on these materials, or, if inevitable for the protection of copyright, destruction of these materials.
Ultimately, the author may request the announcement of the court decision regarding the copyright infringement by means of daily newspapers or similar mediums, as well as the notification of the court decision to those concerned.
Apart from the civil lawsuits and cases that can be executed against those infringing copyrights, CIAW also regulates the criminal aspects of such infringements.
Firstly, any person who, by infringing the copyright, adapts, performs, reproduces, changes, distributes, communicates to the public by devices enabling the transmission of signs, sounds or images or publishes a work, performance or production without the written consent of right holders or puts up for sale, sells, distributes by renting or lending or in any other way, buys for commercial purposes, imports or exports, possesses or stores for non-private use any works adapted or reproduced unlawfully, are sentenced to imprisonment from one year to five years or a judicial fine.
In a similar manner to the above regulation, other kinds of infringement of copyrights, such as giving a title to another person’s work as one’s own work, citing from a work without referring to the source, making a declaration to the public without permission of the copyright owner concerning the content of a work, and giving a wrong, incomplete or misleading reference regarding a work are punished with imprisonment and judicial fines.