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

• As the Article 27 of The Universal Declaration of Human Rights accepted by United Nations General Assembly in 1948 stipulates;

 “(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) 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.
• It is a necessity for the state to undertake the task of regulating the cultural life for five main reasons: Social Justice, Cultural Development, Economic Factors, Moral Reasons, National Prestige and The Fast Developments in Technology.
• The protection of intellectual rights is one of the basic human rights.
• The external dynamics affected the development of intellectual rights more than the internal dynamics.
• At the present time, the economic dimension of intellectual rights is undeniable.
• It is impossible to make progress in a society where products of creative thought are not well protected. This protection is the duty of the state, and is only possible through effective legislations regarding the intellectual rights.
• In intellectual rights observing a balance among the owner of the work, the society, the national interests and the external dynamics is fundamental. The legal regulations in this area can be considered successful only when this balance is well established.

The Features of Copyrights

• Registration is not needed for the birth of copyrights. The rights of the intellectual and artistic works are born with the production of the work.
• Copyrights are abstract by nature. What gets protected by intellectual rights is the value created by the human thought. Copyright has an independent and separate entity and a legal value from the material it is embodied in.
• Intellectual property rights are “territorial” in nature. The protection conditions are determined in accordance with the law of each country.
• Intellectual Property Rights are absolute legal rights and they can be invoked against everyone. Yet, some limitations were brought in for this absolute right such as the protection of the public interest. These exceptional limitations may be introduced for the protection of the public order, public decency, public interest, and in favor of special use (personal use, etc.). (As an instance, it is possible to reproduce a work for personal use, without having any commercial motives.)
• Intellectual property rights are protected for certain periods of time. (They are valid for 70 years in intellectual and artistic works, etc.) Intellectual property has a legal status which is independent -and separate from the things they are embodied in.
• Intellectual property is regulated within a legal framework of specific laws, directives and regulative orders.

The development of Copyrights in Turkey

Due to the fact that the first Turkish printing house was established in 1727, the developments in copyrights in the West could be followed in Turkey but with a delay of about 300 years.

The first legal regulation in the country was The Copyright Regulations Order (Telif Nizamnamesi) which dates back to 1857. According to this document of directives, the person who printed a work has the rights of ownership of the work until all copies run out. Also, it was granting some lifelong privileges to the author and regulating the details regarding making agreements and selling, etc. According to this directives, those who print copies of a work more than the number agreed upon beforehand were subject to penalties.

"Copyrights Law" (Hakkı Telif Kanunu) issued on May 8^th, 1910 was the first law regarding the intellectual and artistic works in a real sense.

The Copyrights Law remained in force until January 1^st 1952, which was the enactment date of the Law No. 5846 on Intellectual and Artistic Works prepared by Prof. Ernst Hirsch, upon the request of the Turkish Ministry of National Education and Law Faculty of Istanbul University. This legislation which set works of translation completely free with its 14^th article, acted as a law that would regulate the Turkish culture and art scenery.

Both the Copyrights Law 1910 and The Law No. 5777, which enabled Turkey to participate in the 1848 Berne Convention in 1948, remained far from the developments in the international scene until the date January 1^st 1952, the day The Law No. 5846 for Intellectual and Artistic Works was enacted.

The Law No. 5846 for Intellectual and Artistic Works was prepared by Prof. Ernst Hirsch. This Law was enacted in 1952 and changes were made on it in 1983, 1995, 2001, 2004, 2007 and 2008.

The Historical Process of Turkey’s Participation in International Agreements

In the period following the Declaration of The Republic of Turkey, the Trade Agreement which was a part of the Treaty of Lausanne required Turkey to participate in the international agreements related to the protection of industrial, literary and artistic property rights within 12 months. However, Turkey asserted its the need for translated works and had reservations on this issue. Because of the objection of other countries, it couldn’t be possible for Turkey to participate in this agreement.

Turkey joined the Berne Union in 1951 and accepted The Berne Convention in 1995. During the preparations for The Berne Convention, it was better understood that the previous Copyrights Law wasn’t able to meet the needs in this area, and there was a need for a law in better accordance with  the Berne Convention.

The Area Regulated by The Law No. 5846 on Intellectual and Artistic Works

The Law No. 5846 on Intellectual and Artistic Works, regulates the following basic elements of copyrights:

• 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 Cinema
• Adaptations

Owner of the Work

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.

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.