INTELLECTUAL PROPERTY RIGHTS: PROTECTION AND ENFORCEMENT IN TURKEY

WHAT IS A INTELLECTUAL AND ARTISTIC WORK ACCORDING TO INTELLECTUAL PROPERTY LAW IN TURKEY?

The central concept of the Law on Intellectual and Artistic Works (FSEK) is “work” and this concept has gained a broad meaning that encompasses many works with the new understanding worldwide. According to FSEK, the concept of work is examined under four main categories. In addition to these four main categories, adaptations that bear the personal characteristics of their creator are also considered works. Works created by utilizing an independent work, dependent on the independent work, and bearing the personal characteristics of their creator are called “adaptations.” Examples of adaptations include translations, explanations, and commentaries of a work, as well as musical arrangements and compositions.

An intellectual and artistic work does not need to be completed to be protected as a work. However, if the work has reached a level that reflects the personal characteristics of its creator, it is protected as a work. Works that do not bear personal characteristics cannot benefit from work protection. Additionally, parts of works are also protected.

Copyright in our country is protected by the Law on Intellectual and Artistic Works No. 5846 (FSEK). FSEK protects the following four groups of works:

1. – Scientific and literary works
2. – Musical works
3. – Works of fine arts
4. – Cinematic works

In addition to these, FSEK also regulates protection issues that are not in the nature of works, such as letters, portraits, names, and signs.

According to FSEK, a creative product must meet three conditions to be protected:

1. Formal Condition: It must belong to one of the work groups specified under FSEK and listed above.
2. Subjective Condition: It must bear the personal characteristics of its creator.
3. Perceptibility: A creative product must be objectively perceptible to be considered a work. Creative products that remain at the idea stage and do not reach a perceptible level cannot benefit from protection against intellectual property violations. However, this condition does not necessarily require a creative product to be materialized. For example, a speech at a conference, if it bears personal characteristics, is considered a work.

WHAT ARE THE RIGHTS OF THE WORK’S CREATOR?

A work that meets the protection conditions provides its creator with moral and financial/economic rights. The rights of the work’s creator include:

• Moral Rights

1. The right to present the work to the public
2. The right to be recognized as the creator / the authority to have their name mentioned
3. The right to prevent alterations to the work
4. The right to access the original work
5. The right to exhibit
6. The right to prevent destruction.

• Financial Rights

1. The right of adaptation
2. The right of reproduction
3. The right of distribution
4. The right of representation
5. The right of publication and communication to the public.

Other Rights

1. The right to a share and follow-up
2. The right of withdrawal
3. The right of waiver

In FSEK, alongside the rights arising from the work to the creator, related rights are also protected. In this context, the legislature protects investment in the cultural industry.

Related Rights Holders:

1. Performing artists
2. Phonogram/record producers
3. Radio-TV organizations
4. Film producers
5. Entrepreneurs who organize the performance.

The financial rights granted to the work’s creator can be transferred to another party through a written contract, and the right to use these rights can also be left to someone else. However, while moral rights cannot be transferred, their use can be left to another party.

HOW IS A INTELLECTUAL AND ARTISTIC WORK PROTECTED IN TURKEY?

The basic ways to protect a work are as follows:

1. Natural Protection: According to intellectual property protection in Turkey, a work has natural protection. Copyright arises at the moment the work is created, and it does not need to be registered. It is sufficient for the work to be original and to fall into the types of works defined in the intellectual property law.
2. Mandatory or Optional Registration: For some types of works, mandatory registration may be required. Cinema and music works and computer games can be evaluated in this context. For other types of works, optional registration can be done. This aims to determine and facilitate proof of ownership.
3. Digital Documentation: By documenting the work in a digital environment, creativity and the content of the work can be protected. It can be helpful to record the work electronically and store it with other documents if available.
4. Contract Making: It is important to sign a contract before sharing the work with a publisher, production company, or other platforms. These contracts specify details such as the transfer or use of financial rights.
5. Legal Consultancy: It is important to receive legal support for the protection of the work and the defense of intellectual property rights in Turkey.

Each of these methods plays an important role in protecting the work and securing the rights of the work’s creator.

WHAT CAN NOT BENEFIT FROM WORK PROTECTION?

Ideas and methods cannot benefit from intellectual property protection in Turkey. Ideas aimed at solving a technical problem can often be protected under patent law. What falls within the scope of the Law on Intellectual and Artistic Works is the form of expression of ideas. For example, anyone can write a poem about the concept of a will. However, no one can claim one or more lines of Nazım Hikmet’s poem “The Will” as their own.

The creator of the work is the person who created the work, and only real persons can create works. In an employee-employer relationship, the creator of the work is the employee who created it. However, the authority to dispose of the rights over the work created as required by the work relationship generally belongs to the employer. Moral rights, however, remain with the creator. But the employer can use these rights to a certain extent.

HOW TO OBTAIN INTELLECTUAL PROPERTY RIGHTS IN TURKEY?

Obtaining intellectual property rights is generally a legal process that requires specific steps and can vary by country.

How to obtain intellectual property rights in Turkey?

1. Determine the Type of Intellectual Property: First, you need to determine which type of intellectual property right you want to obtain. There are different types of intellectual property rights in Turkey, such as patents, trademarks, copyrights, and industrial designs.
2. Research and Evaluation: Research the legal requirements and application process for the types of intellectual property. Learn what conditions must be met and what documents need to be submitted.
3. Application Preparation: Prepare the necessary documents and information for the application. These documents may include a description of the project or product, technical drawings, trademark logos, copies of your written works, etc.
4. Application Process: You will need to apply to the legal authorities under IP Law in Turkey. The application process may vary according to the intellectual property laws and procedures of the office of the country.
5. Evaluation and Approval: The application will be reviewed and evaluated by the institution that will protect the intellectual property right.
6. Protection of Rights: There may be certain legal obligations for the protection of intellectual property rights. You may need to follow steps such as paying renewal fees at regular intervals or initiating legal proceedings in case of intellectual property infringement in Turkey.

The process of obtaining and protecting intellectual property rights can be complex, so professional consultancy or legal services may be useful. Additionally, international protection of intellectual property rights is important, so it may be necessary to act in accordance with international standards.

WHAT IS INTELLECTUAL PROPERTY INFRINGEMENT?

The Law on Intellectual and Artistic Works (FSEK) provides two main legal avenues to address intellectual property infringement:

• CIVIL LAWSUITS FOR INTELLECTUAL PROPERTY INFRINGEMENT IN TURKEY

To protect the rights of the work’s owner, civil lawsuits under the Law on Intellectual and Artistic Works (Law No. 5846) can be divided into four categories:

1. Action for Prevention of Infringement: This is a lawsuit filed to stop an ongoing infringement.
2. Action for Prohibition of Infringement: This seeks to prevent an infringement that is likely to occur.
3. Action for Declaration: Anyone with a legal interest can file a declaratory lawsuit to determine whether there is an infringement of financial and moral rights over a work. The decision given at the end of the case has res judicata effect for the parties involved.
4. Compensation Lawsuits: The party claiming to have suffered damages due to intellectual property infringement can request material and moral compensation.

Civil lawsuits for intellectual property infringement in Turkey are conducted under FSEK, and it is necessary to act in accordance with the regulations specified in the IP law in Turkey.

• CRIMINAL LAWSUITS FOR INTELLECTUAL PROPERTY INFRINGEMENT IN TURKEY

Criminal lawsuits apply in cases involving the infringement of financial, moral, or related rights concerning intellectual and artistic works protected under the IP law in Turkey:

• Individuals engaged in unauthorized processing, performing, reproducing, modifying, distributing, publishing, or selling works can face imprisonment from one to five years or judicial fines.
• Placing someone else’s name on a work as if it were their own can result in imprisonment from six months to two years or judicial fines. If this crime is committed by distribution or publication, the penalty can be six months to five years of imprisonment.
• Using a work without citing the source can lead to imprisonment from six months to two years or judicial fines.
• Making unauthorized public disclosures about the content of a non-public work can be punished with up to six months of imprisonment.
• Providing misleading or incomplete information about a work can lead to imprisonment of up to six months.
• Reproducing or distributing a work using the name of a well-known person without authorization can result in imprisonment from three months to one year or judicial fines.

Investigations and prosecutions for unlawful activities causing intellectual property violations are conducted upon complaints by rights holders or professional associations. However, for a complaint to be accepted, documents proving the rights must be submitted to the Public Prosecutor’s Office. If these documents are not submitted in due time, a decision of no prosecution can be given.

The procedure for criminal lawsuits related to intellectual property infringement in Turkey typically includes the following steps:

1. Application and Complaint: The rights holders or authorized professional associations apply to the prosecutor’s office where the infringement occurred and file a complaint.
2. Prosecutor’s Examination: The public prosecutor carries out the necessary actions for the confiscation of the object of the crime according to the relevant provisions of the Criminal Procedure Code. They can also decide to suspend activities limited to the unauthorized reproduction of the works in question.
3. Judge’s Approval: The prosecutor’s decisions are submitted to the judge for approval within twenty-four hours. If the judge approves, the decisions take effect. Decisions not approved within twenty-four hours become invalid.

During this process, evidence and proofs related to the crime are collected, and the court process can be initiated. The entire process is conducted in compliance with the intellectual property laws and relevant legislation.

WHAT IS COPYRIGHT?

Copyright refers to the set of rights held by the creator of an intellectual or artistic work. The material and moral rights of the creators of intellectual and artistic works are protected by the Law on Intellectual and Artistic Works. The most basic answer to the question of what copyright is is that it is one of the intellectual property rights and benefits from the protection of the said law.

Copyright legally provides rights related to the use or reproduction of any information, idea, artwork, or product created by a person’s or persons’ intellectual effort. There is no need for registration for copyright to arise. The rights of the person or persons on intellectual and artistic works arise with the production of the work. However, the creator can voluntarily register and record the work with the relevant registration units of the country (such as Notary or the Ministry of Culture and Tourism in Turkey).

Copyright is a type of intellectual property that protects the originality of the works of original creators. This right covers various works such as paintings, photographs, books, music, videos, films, architectural works, and sculptures. Copyright is of great importance in terms of the legal protection of original creators.

HOW TO OBTAIN COPYRIGHT IN TURKEY?

Copyrights are legally protected even if they are not registered. A work becomes protected the moment it is published. Optional copyright registration can be done for ease of proof in future disputes, but registration does not establish the copyright that arises with the production of the work. The information and documents required during the registration application and the procedure are specified in the Regulation on the Registration and Registration of Intellectual and Artistic Works.

In general, copyright is protected without registration, but registration may be mandatory in some cases. For example, film producers who make the first fixation of films and phonogram producers who make the first fixation of sounds must register to protect their rights and monitor their exploitation rights regarding financial rights.

For example, cinema films and music are works that require mandatory copyright. To obtain copyright, an application must be made to the General Directorate of Copyright, affiliated with the Ministry of Culture and Tourism. Applicants can make their initial applications through the General Directorate of Copyright’s website and physically obtain their copyright documents. Two copies of the approved documents are prepared; one is given to the relevant person, while the other is kept in the archive of the General Directorate of Copyright.

To ensure that works are secured with copyright, certain conditions must be met:

• The work must be original.
• The work must be one of those expected to be protected by copyright.
• The work must be published in a tangible medium within the scope of copyright.

The work owner seeking copyright must provide all data proving the originality of the work. If the work owner meets the conditions, they can have copyright in many areas. Copyright in Turkey is regulated by the Law on Intellectual and Artistic Works.

HOW TO MAKE COPYRIGHT CLAIM IN CASE OF COPYRIGHT INFRINGEMENT IN TURKEY?

A copyright claim can be made in case of copyright infringement in Turkey. The owner of the infringed copyright can file a copyright claim that includes rectification of the infringement and compensation demands. The copyright claim process generally includes the following steps:

1. Determination of Copyright Infringement in Turkey: First, the copyright infringement in Turkey must be clearly identified. Details such as how the infringement occurred, which work or material was infringed, and how it was infringed should be determined.
2. Notification of Infringement: A written notice should be given to the person or organization where the infringement occurred. This notice should clearly state the details of the copyright infringement and the requested correction or compensation.
3. Request for Correction: A request for correction of the intellectual property infringement in Turkey should be made. Correction can take various forms, such as stopping the infringement, removing the work, or modifying it.
4. Compensation Claim: Compensation can be claimed for damages resulting from the copyright infringement in Turkey. These damages can be financial losses, reputational damage, or moral damages. The amount of compensation in the copyright claim is determined based on the severity of the infringement and the extent of the damage.
5. Legal Process: A legal process can be initiated in case of infringement. A criminal or civil lawsuit can be filed, and the court can be requested to stop the infringement, pay compensation, or take other legal measures.

In the copyright claim process, local legal regulations and the procedures of the relevant judicial authorities must be followed. Obtaining professional legal support can help manage the claim process more effectively.

WHAT CAN BE DONE IN CASE OF COPYRIGHT INFRINGEMENT IN TURKEY?

Copyright grants the author the right to seek financial and moral compensation in case of any infringement. The following lawsuits can be filed to protect the author’s rights in the event of copyright infringement:

• Lawsuit for Prevention of Copyright Infringement in Turkey

If the author faces a threat of intellectual property violations on their financial or moral rights, they can file a lawsuit for prevention of infringement.

The author or those who have acquired the rights can file this lawsuit without the need for fault. The court will consider the nature of the infringement, the existence and severity of the fault, and the potential damages to determine necessary measures for prevention. A lawsuit can also be filed against the business owner if the infringement was committed by representatives or employees during their duties.

If the lawsuit is accepted, the court must clearly and explicitly define the behaviors that the defendant must follow or avoid. Enforcement law will apply to the enforcement of the court’s decision, and legal sanctions will be imposed on those who disobey the court order.

• Lawsuit for Removal of Infringement in Moral Rights Violations

If a work that has not yet been made public is disclosed without the author’s consent or if the author’s name is used contrary to their wishes, a lawsuit for removal of infringement can be filed.

• The author can request the prevention of reproduction, publication, and representation of the altered work, stopping radio broadcasting, correction of changes, or restoration of the work to its original state.
• If the change was published in a newspaper, magazine, or on the radio, the author can demand correction through an announcement at the infringer’s expense.
• In fine arts works, the author may request changes or the removal of their name. If possible and if it does not harm the owner’s interests, the author can restore the work to its original state.

Prevention and removal of infringement can be requested in the same lawsuit.

• Lawsuit for Removal of Financial Rights Infringement

According to the IP Law in Turkey, if a work is reproduced, processed, distributed, represented, or made public without the author’s permission, the author can demand up to three times the usual fee.

If the work or its performances are processed, reproduced, distributed, or made public without the owner’s permission, the unlicensed owners can claim up to three times the fee they could have requested in a contract or the legally determined market value.

If unauthorized copies have not been offered for sale, the owner can request their destruction, delivery for a fee not exceeding the production cost, or three times the amount they could have requested in a contract. However, this does not eliminate the legal liability for unauthorized reproduction, and legal sanctions may apply.

If unauthorized copies have been offered for sale, the intellectual property rights owner can choose options like requesting destruction, demanding an amount exceeding the reproduction cost, or claiming compensation up to three times the legally determined fee if there is a contract.

• Compensation Lawsuits

In case of copyright infringement in Turkey, the author can claim financial and moral compensation. Moral compensation is determined based on the severity of the infringement and the financial situation of the parties. In the infringement of financial rights, compensation can be claimed proportional to the damage and loss of profit.

• Claim for Payment Under Article 68 of FSEK:

The unlicensed work owner can claim up to three times the fee they could have requested if a contract had been made or the fee determined under the provisions of FSEK.

Since these lawsuits are subject to the Code of Obligations, one or ten-year statutes of limitations apply in cases of copyright infringement in Turkey. If the infringement of financial rights also constitutes a crime, the criminal statute of limitations applies. Copyright infringement lawsuits are filed in the defendant’s place of residence or where the intellectual property infringement occurred. However, lawsuits for prevention and removal of infringement can also be filed in the plaintiff’s place of residence court under Article 66 of FSEK.

ARE OFFICIAL INSTITUTIONS RESPONSIBLE FOR COPYRIGHT INFRINGEMENT IN TURKEY?

In cases of copyright infringement in Turkey, pursuing legal and criminal avenues against the infringer is usually the most appropriate solution. However, official institutions do not directly intervene in copyright infringement cases, and such issues are addressed within the scope of private law cases.

If there is no contract with the person or organization using the work, and the work is used without permission, i.e., there is a clear copyright infringement, legal action should be taken based on the Code of Obligations and other relevant legislation.

WHAT IS THE FEE FOR OBTAINING COPYRIGHT IN TURKEY?

While there is no mandatory registration for intellectual and artistic works, a copyright fee is paid in certain situations. This fee is charged in cases of compulsory or voluntary registration as required by intellectual property law. The fee is determined according to the rules specified in Article 11 of the Regulation on the Registration and Registration of Intellectual and Artistic Works.

For 2024, the voluntary registration application fee is 951 TL; for music, cinema, and games that require mandatory registration, the fee is 3,804.50 TL; for imported cinema products such as DVDs, VCDs, and Blu-rays, the fee is 761 TL; and for phonograms containing three or fewer works, the fee is 951.50 TL.

HOW LONG IS THE COPYRIGHT DURATION IN TURKEY?

Copyright protection periods grant creators of intellectual and artistic works rights for a specific period. These periods cover the creator’s lifetime and the period following their death.

• Lifetime of the Creator: A creator has copyright as long as they live. After their death, the protection period is 70 years.
• Works of Legal Entities: For works created by a legal entity, the protection period is 70 years from the date of disclosure.
• Protection Period According to Disclosure Date: For works disclosed after the creator’s death, the protection period is 70 years from the death date.
• Cases Where the Creator is Unknown: If the creator is unknown, the protection period is 70 years from the date the work is disclosed.

The copyright protection periods in Turkey start from the date the work is disclosed. The copyright protection period does not begin for works not disclosed. Works whose protection period has expired can be used freely without permission from the creator. However, applications can be made by the creator or legal representatives to extend this period.

The copyright symbol, a “C” in a circle, ©, indicates that the creator’s rights are protected. Whether or not the “C” symbol is used, every original idea and product inherently has copyright protection.

WHAT IS THE TRANSFER OF COPYRIGHT?

The transfer of copyright involves the copyright owner transferring the rights, in whole or in part, to third parties unless otherwise specified in the contract. This means that the rights related to the work are passed to someone else, and the transferee holds full rights.

For the transfer of financial rights, a written contract is required. The contract and dispositions regarding financial rights must be in writing, and the rights must be specified individually. Thus, the transfer of copyright is carried out through a written agreement between the copyright owner or heirs and the transferee.

However, the moral rights related to copyright are tightly connected to the creator and cannot be transferred through inheritance or legal transactions, nor can another person claim the copyright. If copyright is transferred without a contrary provision in the contract, the creator cannot exercise financial rights over the work.

HOW TO OBTAIN COPYRIGHT FOR A SONG?

How to obtain copyright for a song is one of the most frequently asked questions. In Turkey, there is no official institution where musicians and composers can register their works. This situation can make it challenging for songwriters and composers to protect and prove their copyright. Songwriters seek various methods to prove ownership in case of disputes.

Many people, when creating their songs, turn them into sheet music, record the melody, and then send these materials to themselves via postal mail, using the unopened envelope as evidence. However, unfortunately, this method does not have legal validity. Therefore, songwriters are looking for more reliable ways to protect their rights.

Songwriters who wish to protect their song copyrights can resort to official methods such as notarized documents or applications to the Ministry of Culture. However, these methods can often be expensive and cumbersome.

In recent years, initiatives offering alternative solutions to protect song copyrights have emerged. These initiatives provide various services to protect song copyrights in the digital environment. For example, websites that use time stamps can be used to document the creation and editing dates of songs.

Moreover, with the use of e-signatures, the legal validity of time stamps is also specified in Law No. 5070. This situation facilitates the process of protecting and proving the rights of songwriters.

By using such digital solutions, songwriters can prevent unauthorized use of their songs and legally prove their rights. However, it is important to seek professional legal advice and comply with local legal regulations in all cases.

HOW TO OBTAIN COPYRIGHT FOR A NOVEL?

Intellectual property rights automatically belong to the creator as soon as a work is created. This means that when a person composes a song, draws a picture, or writes a book, copyright is granted to the creator for these works. These rights give the creator the authority to control the distribution, copying, sale, or other use of the work.

Similar to music copyrights, there is no official registration body for novel copyrights. To protect a novel’s copyright, digital registration or notarization of the novel can be beneficial.

When signing contracts regarding the transfer or use of economic rights between an author and a publisher, certain elements should be included in the agreements. These elements typically include:

• Specification of Transferred Economic Rights: The contract should clearly specify which economic rights are being transferred. For example, rights such as reproduction, distribution, and dissemination should be listed individually.
• Written Requirement: The contract should be in writing. This ensures clarity and reliability of the agreement between the parties.
• Duration Specification: The duration of the contract should be specified. For example, a period of 10 years can be set. Conditions for renewing or terminating the contract at the end of this period should also be outlined.
• Print Run and Quantity Limitations: The publisher may have the right to print a certain number of copies. For example, it could be limited to just 2 printings or a specific quantity.
• Publication Location: The location where the book will be published should be specified. It should indicate whether it will be published only in Turkey or also in international markets.

Clearly stating these elements in the contract helps in better understanding the rights and obligations of the parties and prevents potential disputes regarding novel copyrights.

CAN PHOTOS ON THE INTERNET BE USED WITHOUT PERMISSION?

Just because a photo or any work is published on the internet does not mean it can be freely used. Using photos found on the internet without permission constitutes intellectual property infringement and violates the rights of the creator.

The internet provides access to many photos and other works. However, most of these works are subject to copyright and are protected by their owners. Even when a photo or other work is published online, the copyright owner retains the right to protect their work and can claim copyright infringement.

Therefore, before using a photo or other work from the internet, it is necessary to obtain permission from the relevant copyright owner. Unauthorized use of photos or works is considered copyright infringement in Turkey and can lead to legal consequences.

DOES QUOTING A WORK CONSTITUTE A COPYRIGHT VIOLATION?

Quoting from a work involves specific limitations and rules. In Turkey, Article 35 of the Copyright and Artistic Works Law regulates the conditions under which quoting is permissible.

According to this article, the right to quote is valid in the following situations:

1. Quoting from Published Works: If a work has been made public (i.e., it is accessible to the public), it is possible to incorporate certain sentences or paragraphs into a new work. However, the quote must be made in a manner that makes it clear that it is a quote, and the source must be acknowledged.
2. Quoting from Music Compositions: Excerpts from published musical works, such as themes, motifs, or passages, can be included in a new musical composition without restriction.
3. Quoting from Fine Art and Other Works: Published fine art works or other published works can be used in scientific conferences, lectures, or scientific writings. However, the purpose of the quotation must be explicitly stated.

However, it is important to adhere to specific limitations and ethical rules when quoting. Factors such as the scope of the quote, the purpose of its use, the amount quoted, and the original nature of the work should be considered within the context of intellectual property rights.

GETTING SUPPORT FROM INTELLECTUAL PROPERTY LAWYER IN TURKEY

Taking legal help from an experienced IP lawyer in Turkey is an important step in protecting IP law in Turkey. An experienced intellectual property lawyer in Turkey can provide valuable advice on how to protect your trademarks, patents, copyrights, and other forms of IP law in Turkey.

An intellectual property lawyer in Turkey can provide customized advice, risk assessment, and representation in court proceedings. They can help you develop a comprehensive IP strategy that aligns with your business goals and objectives, and ensure that your intellectual property rights are protected to the fullest extent possible.hey can help you navigate the complex legal system, draft legal documents, and represent you in court proceedings.

In terms of protecting intellectual and industrial property rights, intellectual property lawyer in Turkey support is extremely important for carrying out registration procedures, monitoring relevant periods, and making lawful and criminal applications in case of any infringement and ensuring their resolution in compliance with legislation.