AUTHORSHIP AND COPYRIGHT

Authorship and Transfer of Copyrights

The transfer of authorship and copyright is one of the most important issues in intellectual property law. In Turkish law, this subject is regulated by the Law on Intellectual and Artistic Works No. 5846 (FSEK). Copyrights allow authors to commercialize their creativity and protect their works.

Authorship and Copyrights

I. Authorship

The author is the creator of a work and possesses specific rights over it. According to Article 1 of the Copyright Law, a work is "an intellectual and artistic work created by its owner as a result of a specific creative activity." Within this scope, literary, musical, cinematographic, and other types of works are created by the author. The author acquires certain rights from the moment the work is created. The author has the right to transfer or license their rights over the work.

II. Copyrights

Copyright grants the author economic and moral rights over their work. These rights are regulated in Article 14 of the Turkish Copyright Law (FSEK). Copyright encompasses many activities such as the use, publication, reproduction, representation, and adaptation of the work. These rights enable the author to protect and enhance the commercial value of their work.

Article 14 of the Turkish Copyright Law: “The author has economic rights arising from the use of the work. These rights include the reproduction, distribution, publication, performance, transmission of sound and images, and processing of the work.”

Transfer of Copyrights

I. Conditions of the Period

The transfer of copyright is regulated under Article 21 of the Copyright Law. According to this article, a written agreement is mandatory for the author to transfer their copyright. Failure to comply with the formal requirements of this agreement will render the transfer invalid.

Article 21 of the Copyright Law: “The author may transfer all or part of the economic rights belonging solely to the author. However, this transfer must not prejudice the author's moral rights.”

This clause mandates that formal requirements must be met for the validity of copyright transfers. A written agreement is crucial for clearly defining the rights and obligations of the parties. Furthermore, the scope, duration, and geographical boundaries of the transferred rights must be clearly specified.

II. Types of Transferred Rights

Copyrights that an author can transfer fall into two main categories:

• Material Rights: These are rights related to the use of the work and are transferable. These include rights such as reproduction, distribution, exhibition, and performance of the work. Material rights determine the economic value of the work, and the transfer of these rights increases its commercial potential.
• Moral Rights: These are the author's personal rights relating to their work, and they are inalienable. Moral rights include the right to protect the author's identity, prevent alterations to the work, and determine the manner in which the work is published.

In this context, Article 15 of the Law on Intellectual and Artistic Works should be examined:

Article 15 of the Copyright Law: “The author has the right to prevent changes to their work and to determine the manner of its publication. These rights are non-transferable.”

Supreme Court Case Law

Decisions of the 11th Civil Chamber of the Supreme Court of Appeals

Many of the Supreme Court's decisions regarding the transfer of copyright are of great importance in terms of the practical application and implementation of the matter. For example, a decision from 2005 clearly stated the validity and formal requirements of copyright transfer agreements.

The 11th Civil Chamber of the Supreme Court of Appeals, Case No. 2005/321 E., Decision No. 2005/234 K., stated: “The transfer of copyright must be made with the written consent of the author and in accordance with the formal requirements of the contract. Otherwise, the transfer is clearly invalid.”

This decision emphasizes the importance of formal requirements for the validity of the transfer. It also states that transfers made without the written consent of the copyright holder will be invalid.

 Supreme Court 11th Civil Chamber, Decision No. 2012/3577 E., 2012/5866 K

This decision emphasizes that the moral rights of the author are non-transferable. The ruling states that moral rights are inalienable and must be protected.

The 11th Civil Chamber of the Supreme Court of Turkey, Case No. 2012/3577 E., Decision No. 2012/5866 K., stated: “Moral rights are linked to the personal existence of the author and are not transferable. The rights to protect the author's identity and to prevent any alterations to the work are non-transferable.”

This decision clearly establishes that the author's moral rights are inalienable and protects the author's personal rights over the work.

If we examine a sample Supreme Court decision in its entirety;

 

7th Criminal Chamber, Case No. 2021/15815 E., Decision No. 2021/14459 K.

"Case Law Text"

COURT: Primary Criminal Court
CRIME: Violation of Law No. 5846
VERDICT: Conviction

The judgment rendered by the local court was appealed; after reviewing the file considering the timeliness of the application, the nature of the decision, and the date of the crime, the matter was considered and deliberated upon in the name of the Turkish Nation;
During a search conducted in accordance with legal procedures at the business premises called … Photocopy, where the defendant is the authorized representative, several books belonging to various publishing houses were found on the computer, including a book titled “Atatürk Principles and the History of the Revolution” the work In the specific case involving the seizure of 206 books without ISBNs, the plaintiff Yaybir Professional Association submitted a document to the file regarding the seized books ownership Upon examination of the documents, although titled "Atatürk's Principles and the History of the Revolution" work You have the right to file a complaint within the 6-month statutory period regarding this matter ownership Although he presented documents to prove his innocence, the book titled "Atatürk's Principles and the History of the Revolution" found in the defendant's workplace.. the work The agreement was signed between … and Okutman Publishing Ltd. Co. on 07/06/2012, with “Assoc. Prof. Dr. …” as the author copyright rights The subject of the crime is the "Atatürk Principles and History of the Revolution" book, based on the contract relating to its transfer the work rights The publisher was transferred to …, as per the agreement dated 21/12/2012 between … and … Printing, Publishing and Distribution Inc., a member of Yaybir Professional Association copyright rights the subject of the transfer agreement is the book titled "Atatürk's Principles and the History of the Revolution" the work The fact that Associate Professor Dr. ... is not among the authors, and thus Yaybir Professional Association is involved in the crime with the work in relation to rights ownership not found; the "Atlas of Great Civilizations Encyclopedia" found on the defendant's computer to the work In relation to, the right ownership Since it has been determined that the legally valid documents related to the case were not submitted within the legal time limit, the judgment was rendered in writing pursuant to Articles 71/1 and 81/13 of Law No. 5846, without considering that the defendant's actions comply with Article 81/4 of the same Law
According to the acceptance;
The court imposed an excessive penalty on the defendant due to a calculation error, resulting in a fine of 8,500 TL for 425 days instead of 8,100 TL for 405 days, as per Article 62 of the Turkish Penal Code
Since the defendant's appeals are deemed justified due to the illegality of the judgment, it is hereby REVERSED in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8/1 of Law No. 5320, as requested, and Article 326/last paragraph of the Code of Criminal Procedure shall be taken into consideration in the retrial. This decision was made unanimously on November 8, 2021.

Authorship and Copyright Transfer Agreements

I. Form and Content of the Contract

Copyright transfer agreements must be in writing, as required by Article 21 of the Turkish Copyright Law. The agreement must clearly specify the scope, duration, geographical limitations, and usage methods of the transferred rights.

Sample Contract Clause:

• “With this agreement, all/part of the copyright of the work entitled [title of the work] is transferred to [buyer name]. The transfer will be valid for [duration], within [geographical boundaries], and in [usage] manner.”

The contract should clearly specify the rights being transferred to prevent future disputes. Additionally, the contract should include the names, addresses, and signatures of both parties.

II. Validity Conditions of the Agreement

For the contract to be valid, it must be signed by both the copyright holder and the transferee, and it must comply with legal requirements. Furthermore, it is important that the transferee has the authority to use the copyright.

Article 21 of the Copyright Law: “The transfer of copyright must be made with the written consent of the author and in accordance with the formal requirements of the contract. Otherwise, the transfer is clearly invalid.”

Dispute Resolution

I. Alternative Dispute Resolution Methods

Alternative dispute resolution methods, particularly mediation and arbitration, play a significant role in resolving copyright disputes. These methods reduce the length and cost of litigation.

Article 80 of the Copyright Law: "Mediation and arbitration methods may be used to resolve disputes related to copyright."

II. Court Procedures

In copyright disputes, the Intellectual and Industrial Property Courts have jurisdiction as the relevant courts. The court evaluates all aspects relating to the transfer and use of rights to the work in question.

Article 79 of the Law on Intellectual and Industrial Property Rights: "In disputes relating to copyright, the Intellectual and Industrial Property Courts have jurisdiction."

Courts decide on copyright transfer agreements by considering the rights and obligations of the parties. The courts' diligent efforts to protect the rights of the parties ensure the fair use of copyrights.

Authorship and the transfer of copyrights are among the most detailed topics in intellectual property law. In accordance with the Turkish Copyright Law and Supreme Court precedents, due importance must be given to protecting the rights of authors, ensuring the transfer is carried out on a legal basis, and resolving disputes. Legal advice and expert services throughout this process are critical to safeguarding the rights of authors.

 

Student Intern 

Behiye Zeynep Ozturk