What is Copyright?

Copyrights are the rights provided by law upon the products a person produced with any kind of intellectual efforts.

The Necessity of Copyright Laws

• The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948

Article 27:

“(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2. (2) 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.”

• Intellectual and artistic works are assurances that make human life worth living. Ensuring the protection of inventions and works of art is a task upon the state which should be observed carefully. The state must fulfill its duty of “protecting the inventions and works of art” through legal regulations.

• There are five fundamental reasons why the state must assume responsibility for regulating cultural life. These are: Social Justice, Cultural Development, Economic Factors, Spiritual Reasons, National Prestige, and Rapid Technological Development.

• The protection of intellectual property rights is one of the fundamental human rights.

• The development of intellectual property rights has been influenced more by external dynamics than internal ones.

• The economic dimension of intellectual property rights has become undeniable.

• Progress cannot be achieved in a society where creative works are not adequately protected. This protection is the responsibility of the state and is only possible through effective intellectual property legislation.

• In intellectual property rights, the balance between the author and society, national interests and external dynamics is fundamental, and intellectual property legislation is considered successful to the extent that this balance is achieved.

Characteristics of Copyright

• There is no requirement for registration for copyright to arise. Rights over literary and artistic works arise upon the creation of the work.

• Copyrights are of an abstract nature. They protect intangible assets created by human thought. Copyrights possess a separate and independent existence and legal value distinct from the material form in which they are embodied.

• The principle of territoriality applies to copyright. The conditions for protection are determined according to the legislation of the country in which protection is sought.

• It has the nature of an absolute right. Copyrights can be asserted against anyone. However, various restrictions have been imposed on this absolute right for reasons such as the protection of public interest. Limitations imposed on absolute rights: These consist of limitations imposed for reasons such as public order, public morality, and public interest, and exceptions made for the benefit of private interests (personal use, etc.). (For example, it is possible to reproduce a work for personal use without pursuing profit.)

• Intellectual property rights are protected for a certain period of time (70 years for literary and artistic works, etc.). Intellectual products have a legal status that is separate and independent from the tangible objects in which they are embodied.

• Intellectual property is regulated within the framework of specific laws, statutes and regulations.

The Historical Development of Copyright in Turkey

Due to the establishment of the first Turkish printing press in 1727, developments in the field of copyright in the West were followed with a delay of approximately 300 years. In our country, the first legal regulation concerning copyright during the Ottoman period was the Copyright Regulation of 1857. According to this Regulation, the printer retained ownership of the work until all printed copies were sold out. The author was granted a lifetime privilege, and matters relating to agreements with the printer and sales were regulated. Furthermore, those who printed more copies than agreed upon were punished.

The first genuine intellectual property law, the Copyright Act, was enacted on 8 May 1910. The Copyright Act was drafted by Professor Hirsch at the request of the Ministry of National Education and on the instructions of Istanbul Law Faculty, remained in force until 1 January 1952, the date of entry into force of the Intellectual and Artistic Works Law No. 5846, prepared by Prof. Hirsch. It was enacted as a law that would shape Turkish cultural and artistic life, and Article 14 of the Law completely liberalised translation.

Both the Copyright Law of 1910 and Law No. 5777, which implemented Turkey’s accession to the 1948 document of the 1886 Berne Convention, remained isolated from international developments until 1 January 1952, when Law No. 5846 on Intellectual and Artistic Works came into force.

The Intellectual and Artistic Works Act No. 5846 was drafted by Professor Ernst Hirsch and entered into force in 1952. The Act No. 5846, which entered into force in 1952, was amended in 1983, 1995, 2001, 2004, 2007 and 2008.

The Historical Process of Our Country’s Participation in International Agreements

During the Republican era, the Trade Agreement annexed to the Treaty of Lausanne stipulated that Turkey should accede to international agreements concerning the protection of industrial, literary and artistic property within 12 months.

However, Turkey raised reservations on the matter, pointing to its need for translated works, and as a result of objections from other states party to the treaty, Turkey was unable to accede to the treaty.

Turkey acceded to the Berne Union in 1951 and ratified the Berne Convention in 1995. During the preparations for accession to the Berne Convention, it became clear that the Copyright Law was inadequate to meet the needs, and it became necessary to enact a law that was compatible with the provisions of the Berne Convention.

Scope of Regulation of the Intellectual and Artistic Works Law No. 5846

The fundamental elements of copyright are regulated in the Intellectual and Artistic Works Act No. 5846 as outlined below.

• THE WORK
• OWNER OF THE WORK
• RIGHTS OF THE OWNER
• PROTECTION PERIOD
• THE EXCEPTIONS AND LIMITATIONS REGARDING THE RIGHTS OF THE OWNER
• PROFESSIONAL ASSOCIATIONS
• TRANSFER OF RIGHTS (CONTRACTS)
• RELATED RIGHTS
• VIOLATIONS AND SANCTIONS

The Work

According to the law, in order for an intellectual or artistic product to be accepted as a “Work” and protected, it should be;

• A product of an intellectual effort,
• Carry the characteristic of its owner,
• Formed,
• Included among the types of works listed in the Law.

Types of Work

• Works of Science and Literature
• Works of Music
• Works of Fine Arts
• Works of CinemaSinema eserleri
• Adaptationsİşlenme ve Derlemeler

Owner of the WorkEser Sahibi

According to The Law, the owner of a work is the person who brings it into existence. A work may have more than one owner.Kanunumuza göre; bir eserin sahibi onu meydana getiren kişidir. Bir eserin birden fazla sahibi olabilir.

As long as the rights of the original owner remain preserved, the owner of an adaptation is the adapter.

In the cinematic works, the director, the composer of the original soundtrack and the writer of the scenario are the collective owners of the work. The animator is also accepted as one of the owners of the work.

Rights and Sanctions

The Rights of the Owner

The rights the owner has on the work by The Law No. 5846 are immaterial and financial rights:

Immaterial Rights:

• The right to publicize
• The authority of the name to be specified
• The authority to prevent any changes made on the work
• The Rights of the Owner of the Work against the Possessor, and the Owner

Financial Rights;

• The right to adapt: The right to produce products created through the use of another work which are not independent as compared to the original work, and carry characteristics of the adapter.
• Right to Duplicate: The right to make single or multiple copies of an original or adaptations of a work, partially or as a whole, using any kind of techniques, whether by direct or indirect means, temporarily or permanently.
• Right to Disseminate: The right to disseminate, lease, lend or sell or make a subject of trade -by any means a work or its copies produced by duplication from the original or adaptation of it.
• Right to Perform: The right to make use of a work by means of performance such as reading, playing and displaying it in public places directly or through technical devices used for sign, sound or image transmission.
• Right to Broadcast: Broadcasting an original work or adaptations of it through organizations such as radio, TV, satellite and cable, which are broadcasting with or without wires, by technical facilities used for transferring sign, sounds and/or images, including digital transmissions.

Transfer of the Rights

Owners of the works or their heirs can transfer their financial rights requited, unrequited and for a transitory or indefinite period. The contracts regarding the financial rights must be in a written format and each one of the rights to be transferred must be mentioned separately.

Exceptions of the Rights

• In consideration of Public Order
• In consideration of general interests
• In consideration of private interest of individuals
• Copying and demonstration
• Authorities granted to the government

Owners of Neighboring Rights

PERFORMING ARTISTS: Artists who interpret, introduce, narrate, sing, play and perform the intellectual and artistic work in an original way in various forms.

PHONOGRAM PRODUCERS: Natural persons or legal entities are producers that make the first fixation of voices and other sounds, which are produced by a performance, to the sound carriers like a plaque, cassette, CD, etc., and hold the legal responsibility for these actions.

RADIO-TELEVISION ORGANIZATIONS: Institutions who make any kind of broadcast by means of cable, wireless means or satellite.

FILM PRODUCERS: Natural persons or legal entities who make the first recording of the images to a device in an understandable, reproducible and transmittable format.