Within the framework of the Law on Intellectual and Artistic Works (FSEK), a work deserving of protection confers on its author a series of powers gathered under the heading of economic and moral rights. Where any one of these powers is prejudiced, more than one avenue of action lies open to the rightholder: an action for the removal of the infringement, an action for the prevention of the infringement and an action for the transfer of the profit obtained are the principal ones. It is further possible for an author who has suffered pecuniary or non-pecuniary loss to claim damages from the person concerned in order to make good that loss.
Subject-matter jurisdiction in these actions lies with the Civil Court for Intellectual and Industrial Property Rights; as regards territorial jurisdiction, the court of the author’s place of residence may come into play as well as that of the respondent’s place of residence. Since our legislation does not lay down a separate limitation period specific to these actions, the period is determined according to the general provisions of the Code of Obligations.
Below we examine authorship, the scope of the rights, the types of action available in the event of infringement and the regime of time limits.
Works and Authors under the FSEK
The Law on Intellectual and Artistic Works (FSEK) defines a work as any product of intellect and art which bears the characteristics of its author and which is counted among works of science and literature, music, fine arts or cinematographic works. For the purposes of the Law, the author is the natural or legal person who creates the work; a work falling within the scope of protection affords its author certain rights.
The moment at which these rights are acquired is the moment the work comes into existence. In other words, no act of registration is required in order for the capacity of author to be recognised.
The Rights of the Author
The FSEK divides the powers granted to the author into two, economic and moral rights. Nevertheless, the greater part of the rights listed in the Law are exercised together, and indeed the exercise of some of them necessarily brings another into play. For this reason the economic–moral distinction goes no further than an artificial classification; all of the powers set out in the Law are in essence powers exercised within the scope of copyright.
Moral rights in a work. This category comprises the right of disclosure to the public, the power to require that the author’s name be indicated, the power to prevent alterations being made to the work, and the rights that may be asserted against the owner and the possessor. As the rights in question are attached directly to the person, they cannot be transferred. The author may nonetheless leave the power to exercise such a right to another person.
Economic rights in a work. The principal economic rights, which are set out exhaustively in the Law, are the rights of adaptation, reproduction, distribution and performance. In addition, the right of communication to the public by means of devices serving the transmission of signs, sounds and/or images and the right to a share and pursuit are also among the economic rights that the legislation grants to the author. Unlike moral rights, these rights may be transferred and may pass to others. By contrast, no new economic right not contained in the Law may be created.
For a detailed assessment of the subject, our note entitled “The Author’s Rights, the Protection of Those Rights and Their Transfer” may be consulted.
Actions That May Be Brought in the Event of Infringement
How protection is to be secured where economic rights are infringed by third parties is likewise regulated in the FSEK. The types of action available under private law are as follows.
Action for the Removal of the Infringement
The basis of this action is Art. 66(1) of the FSEK:
Art. 66(1) of the Law on Intellectual and Artistic Works No. 5846
“A person whose moral and economic rights have been infringed may bring an action against the infringer for the removal of the infringement.”
As is apparent from the provision, a person whose moral or economic rights are under attack may request that an attack presently continuing be brought to an end. It is not required, for this action to be brought, that the person committing the attack be at fault.
Action for the Prevention of the Infringement
This action, also referred to as the action for the prevention of an attack, is brought with a view to forestalling an attack on moral and economic rights which is likely to occur. Recourse may also be had to this avenue where there is a possibility that an attack which has already occurred will continue or be repeated.
Action for Pecuniary and Non-Pecuniary Damages
An action for damages seeks to make good the pecuniary or non-pecuniary loss arising as a result of an unlawful attack directed at the moral and economic rights of the author. Pursuant to the arrangement in the FSEK, an author whose economic rights have been harmed may claim compensation for that loss within the framework of the provisions of the Turkish Code of Obligations No. 6098 relating to tort. Since compensation takes place according to the general provisions, it is here a condition that the person infringing the right be at fault.
Action for the Transfer of the Profit Obtained
Art. 70(3) of the FSEK provides that, in the event of an infringement of economic and moral rights, the rightholder may, in addition to damages, also demand that the profit obtained be handed over to him. Underlying this arrangement are the provisions on agency without authority contained in the Turkish Code of Obligations. The claim is not made conditional upon the person committing the attack being at fault, nor is it limited by the amount of profit of which the rightholder has been deprived.
On the other hand, our legislation also affords an author whose rights have been infringed the possibility of securing the commencement of criminal proceedings against those concerned by filing a criminal complaint with the public prosecutor’s office. For details of the criminal proceedings that may be conducted in respect of infringements of rights in intellectual and industrial works, our note entitled “Criminal Actions That May Be Brought against Infringements of Rights in Intellectual and Artistic Works” may be consulted.
Courts with Subject-Matter and Territorial Jurisdiction
Disputes concerning intellectual and industrial property rights must be resolved swiftly and by courts versed in the subject. Pursuant to Art. 76(1) of the FSEK, in those actions arising out of the Law on Intellectual and Artistic Works which relate to private law, the Civil Courts for Intellectual and Industrial Property Rights have subject-matter jurisdiction as specialised courts. In places where such a court has not been established, jurisdiction lies with the Commercial Court of First Instance or the Civil Court of First Instance.
The general rule as to territorial jurisdiction is the court of the respondent’s place of residence. That said, pursuant to Art. 66 of the FSEK, the court of the place where the author resides also has territorial jurisdiction in actions for the removal and the prevention of the infringement. Where the interference constitutes a tort, the rightholder may also bring the action before the court of the place where the infringement occurred.
Although Art. 66(V) of the FSEK speaks only of the author as rightholder, the court with territorial jurisdiction may be determined on the same principles in respect of holders of economic rights or of licences. Accordingly, these persons too, having the capacity of claimant, may bring their action in respect of the loss they have suffered by reason of the infringement at their own place of residence.
Statute of Limitations
As the Law on Intellectual and Artistic Works contains no special arrangement on the statute of limitations, the limitation periods of the Code of Obligations relating to contract and to tort apply. Two separate possibilities accordingly arise:
- Where the infringement arises out of a contractual relationship between the parties, the action must be brought within a limitation period of ten years.
- Where the infringement is in the nature of a tort, a period of two years runs from the date on which the injured party learns of the loss and of the person responsible for it. In any event, the right of action becomes time-barred upon the expiry of ten years from the date on which the act was committed. However, where the act arises from conduct requiring a penalty for which the criminal laws prescribe a longer limitation period, that longer period applies.
Independent Legal’s Assessment
In copyright infringements, choosing the right type of action is often more decisive than the claim itself. The action for removal serves to lift an ongoing attack, while the action for prevention serves to forestall an attack that is expected or likely to be repeated; in practice the two are frequently asserted together. The distinction as to the requirement of fault also directly affects strategy: whereas fault is not required for claims for removal and prevention, fault must be established in a claim for damages. For this reason, in files where proof of fault is difficult, the claim for the transfer of the profit offers a functional option.
Since the limitation regime likewise varies according to the nature of the infringement, whether the dispute rests on contract or on tort must be clarified from the outset.
In a concrete file, the headings that should be given priority are as follows:
- Determining whether the infringement arises from a contractual relationship or from a tort
- Whether the claims for removal, prevention, damages and transfer of the profit are to be asserted together
- Choosing between damages and transfer of the profit according to how far fault can be proved
- Assessing the advantage in territorial jurisdiction afforded by the court of the author’s place of residence
- Planning access to commercial records so that the profit obtained can be calculated
Independent Legal provides litigation services throughout the whole of the process in intellectual property disputes, from the establishment of the infringement to the construction of the litigation strategy.