The rights conferred on the creator of intellectual and artistic products are regulated and secured by the Law on Intellectual and Artistic Works No. 5846 (FSEK). The Law defines a work as any intellectual and artistic product that bears the individual character of its author and falls within one of the categories of works of science and literature, musical works, works of fine art or cinematographic works. The right arises of itself at the moment the work is created; recordal or registration, for its part, has no function beyond facilitating proof.
Since this right of the author is absolute in nature, it may be asserted against everyone. The FSEK provides for a limited number of economic and moral rights in a work. The power to exercise those rights belongs, as a rule, exclusively to the author; the author may nevertheless transfer their economic rights to another by drawing up a written contract, using one of the methods of assignment, licence or permission.
Nor is it necessary for the transfer relationship to endure indefinitely. If the parties have agreed a term, the expiry of that term brings the relationship to an end of itself; if the contract is directed at a particular purpose, the attainment of that purpose does the same. Moreover, where the conditions required by the legislation are met, it is also possible for the author to exercise a right of withdrawal. In this briefing note we address in turn how ownership of the right is determined, the scope of the rights, the methods of transfer and the ways in which the contract comes to an end.
Determining Ownership of the Right
The Law on Intellectual and Artistic Works No. 5846 (FSEK) defines a work as any kind of intellectual and artistic product that reflects the individual character of its author and is counted among works of science and literature, musical works, works of fine art or cinematographic works. The author is the person who creates the work. To acquire that capacity it is sufficient that the work has been created; no separate declaration of intention, application or registration is required.
Indeed, the provision on registration, FSEK Art. 13(3), reads as follows:
FSEK No. 5846, Art. 13(3)
“Film producers who carry out the first fixation of films and phonogram producers who carry out the first fixation of sounds shall have their productions containing cinematographic and musical works recorded and registered, not for the purpose of creating rights, but for the purposes of ensuring that the rights they hold are not infringed, of facilitating proof in the determination of ownership of rights, and of enabling the powers of exploitation relating to economic rights to be monitored. For the same purposes, upon the request of authors, all works protected under this Law may be recorded and registered, and the powers of exploitation relating to economic rights may also be placed on record. The Ministry cannot be held responsible for these transactions, which are based on declaration.”
The provision establishes that registration has no constitutive effect as regards ownership of the right. Registration is carried out solely for the purposes of facilitating proof and enabling the powers of exploitation relating to economic rights to be monitored. The settled case law of the Court of Cassation is to the same effect: the right arises of itself upon the creation of the work, and recordal and registration have no consequence beyond that.
Rectification of an Improper Registration
Even where a work has been improperly registered in the name of a person who is not the true owner of the right, ownership of the right in the work continues to belong to the person who created it. Such an entry nevertheless gives rise to serious difficulties at the stage of proving ownership of the right. In order that this difficulty may be overcome, FSEK Art. 15(3) provides for the possibility of rectifying an improper registration.
Accordingly, where a work has been improperly registered in the name of a person other than its true author, the owner of the right may bring an action before the Civil Court for Intellectual and Industrial Property Rights. The claim to be advanced in that action is for annulment of the work exploitation certificate containing the improper registration, together with a declaration of the right.
The Rights of the Author
The FSEK gathers the rights conferred on the author under two headings: economic rights and moral rights. In practice these rights are most often exercised together, and the exercise of some of them necessarily entails the exercise of another. The economic–moral distinction is therefore essentially an artificial classification; the whole of the powers enumerated in the Law constitutes the body of powers exercised under the roof of copyright. It is nevertheless appropriate to follow the classification in the Law so that the subject may be grasped more easily.
Moral Rights
These rights, which protect the moral bond between the author and the work, are regulated in Articles 14 to 19 of the Law on Intellectual and Artistic Works. The powers, which are laid down in the Law as a limited number, are the following:
- The power to decide whether or not the work is to be disclosed to the public (FSEK Art. 14)
- The power to require the author’s name to be indicated on the work (FSEK Art. 15)
- The power to prevent alterations being made to the work (FSEK Art. 16)
- The powers that may be asserted against owners and possessors of the object in which the work is embodied (FSEK Art. 17)
Economic Rights
These rights, which concern the economic relationship the author establishes with the work, are also called pecuniary rights. The economic rights, again enumerated in the Law as a limited number, may be listed as follows:
- The right of adaptation (FSEK Art. 21)
- The right of reproduction (FSEK Art. 22)
- The right of distribution (FSEK Art. 23)
- The right of performance (FSEK Art. 24)
- The right of communication to the public (FSEK Art. 25)
- The resale right and right to follow (FSEK Art. 45)
The Concept of Copyright
Since the powers regulated in the Law display a structure in which each complements the other, moral and economic rights are in fact powers contained within a single absolute right. That absolute right, which stands at the centre of the legal rules on intellectual and artistic works, is termed copyright.
Our legislation separately regulates the legal remedies that may be resorted to where the author’s economic and moral rights are infringed. For detail on this subject, our note entitled “Actions That May Be Brought by the Author Under the FSEK” may be consulted. The avenues that may be pursued in order to secure the imposition of criminal sanctions on the infringer are addressed in our study entitled “Criminal Proceedings That May Be Brought Against Infringement of Rights in Intellectual and Artistic Works”.
Methods Used for the Transfer of Economic Rights
Under the statutory rules, the power to exercise moral and economic rights lies exclusively with the author. The author may nevertheless transfer their economic rights to another, provided that a written contract is made with the person concerned. The FSEK provides that this transfer may be effected by three separate methods: assignment, licence and permission.
Assignment
The assignment of economic rights within the meaning of the FSEK is in the nature of an act of disposition. The right that is the subject of the assignment leaves the assignor’s estate and the assignee obtains an absolute right. However, even where the economic right changes hands, the author’s moral rights and interests continue to exist, and so the author’s bond with the work is not severed entirely. Indeed, just as the assignee must exercise the rights within the framework of the conditions laid down in the act of assignment, they are also obliged to have regard to the author’s moral rights in the course of that exercise.
Licence
The situation in which not the economic right itself but only the power to exercise it is left to another is the method of licence. Under this method the right does not leave the transferor’s estate; what is transferred to the other party is only the right to exercise the right.
Permission
The third route of transfer is the method of permission. Under the FSEK provisions, permission is in the nature of a form of consent given by the author to a performing artist or to a phonogram producer. The point to be noted here is the following: the new work that emerges upon the permission being given acquires an independent character belonging to the person to whom permission was given. In other words, the author who gave the permission cannot dispose of that new work created after the permission.
Form of the Assignment Contract
That the contract of assignment must be in writing is expressly laid down in FSEK Art. 52:
FSEK No. 5846, Art. 52
“Contracts and dispositions concerning economic rights must be in writing, and the rights that form their subject matter must be indicated separately.”
Under the same provision, which rights are transferred must likewise be indicated one by one in the contract. A contract of assignment made without complying with the requirement of written form is invalid. As regards content, in situations where the rights assigned are not expressly stated and doubt arises, rights falling outside the purpose and subject matter of the transaction must be regarded as not having been assigned.
Termination of the Assignment Contract
Expiry of the Term and Attainment of the Purpose
A contract of assignment may be established for a fixed term or for an indefinite term. If the parties have agreed a date of termination, the contract lapses of itself upon expiry of that term. If the contract was made in order to achieve a particular purpose, the attainment of that purpose produces the same result. In addition, the parties may at any time bring the contract to an end by agreement, even before the term has expired. Where the contract comes to an end in this way, the right assigned reverts to the assignor of itself.
Exercise of the Right of Withdrawal
Withdrawal is a form of termination — in other words, of rescission — specially regulated in FSEK Art. 58. Under the provision, where the assignee “does not make proper use of the rights and powers” within the agreed period “and the interests of the author are substantially infringed”, the author may withdraw from the contract. Where no period has been fixed between the parties, recourse may also be had to withdrawal if the assignee fails to exercise those rights within a reasonable time.
The essential criterion here is that the person who acquired the right has impaired the author’s interests by failing to make proper use of it. The right of withdrawal may be exercised only where this particular infringement is present.
Fault on the part of the other party is not required for withdrawal. Where there is fault, the author may also claim damages separately, relying on the provisions of the Turkish Code of Obligations No. 6098. Conversely, where the other party is not at fault, or where the author’s fault outweighs it, the other party may, as equity requires, also claim reasonable compensation (FSEK Art. 58(IV)). Where the author is at fault, it is not possible for them to benefit from the right of withdrawal.
Independent Legal Assessment
A significant proportion of copyright disputes arises not from infringement but from the contract itself. The picture most frequently encountered in practice is that the parties content themselves with a general formula such as “all rights have been assigned”, leaving it unclear which economic right has been transferred and to what extent. Given that FSEK Art. 52 requires the rights to be indicated separately, such a text will in all likelihood be construed in the author’s favour when it comes to be interpreted, and the conclusion will be reached that rights falling outside the purpose were not assigned.
The second point the assignee must bear in mind is that having acquired the right is not independent of the obligation to use it. Leaving the right dormant may bring into play the institution of withdrawal, which operates without any requirement of fault. That moral rights cannot form the subject of an assignment means, for its part, that a person who acquires an economic right cannot act without limit as regards altering the work or indicating the author’s name.
When an assignment relationship is being established, the following headings should be addressed as a priority:
- Making the contract in writing and enumerating each economic right assigned one by one together with its article
- Making clear in the text whether the transfer is effected by assignment, by licence or by permission
- Expressly limiting the term, the geographical scope and the forms of use
- Assessing at the outset the risk of withdrawal against the possibility that the assignee does not actually exercise the right
- Making provision on the indication of the author’s name and the prohibition on alteration, having regard to the fact that moral rights cannot be assigned
- Assessing the possibility of recordal and registration as a means of facilitating proof
Independent Legal provides advisory services in the field of intellectual property, from the drafting of copyright contracts through to the determination of ownership of rights and the conduct of litigation in cases of infringement.