The Concept of Artistic Artifact and Ownership Under the Law on Intellectual and Artistic Works

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Uçar Law & Consultancy Office

Uçar Law & Consultancy Office

Intellectual rights; is the financial and moral rights granted to the owner of the artifact on the products created as a result of the intellectual and artistic activities of the person under the title of intellectual property.

WHAT IS AN ARTIFACT?

An artifact is a tool used to convey an idea to the society. Every part of the artifact is under protection. Even if it is not completely finished, hese intellectual artifacts can be protected as a artifact if it is considered to have made a certain progress.

FOR IT TO BE AN ARTIFACT;

  • The artifact has to be created by a real person,
  • It has to be formation as a result of an intellectual effort,
  • It has to carrying the property of the owner,
  • It has to take a shape,
  • It must be included in FSEK (“ Law on Intellectual and Artistic Works”).

In a decision from the Supreme Court of Appeals[i], it has ruled that lawyer petitions can be considered as artifacts if they meet the criterias of “…the information used is defended by the lawyer for the first time, does not enter the public domain, and reveals an intellectual creativity…”. For this, original ideas must be defended and must be within the frameartifact of a legal and scientific study that cannot be carried out by every lawyer.

 

ARTIFACTS THAT ARE PROTECTED UNDER THE LAW

A. SCIENCE AND LITERATURE ARTİFACTS

  • Artifacts Expressed in Language or Written

In this context, artifacts may have been expressed in a language that few people know, with formulas or symbols. It doesn’t matter if the artifact are incomprehensible to people. The important thing is that the artifact has revealed its existence through language or writing.

The fact that the content of the artifact in question is not in compliance with the law does not affect the quality of the artifact as an artifact. In addition, pursuant to article 27/1 of the Turkish Code of Obligations, “Contracts that are contrary to the mandatory provisions of the law, morality, public order, personal rights or the subject of which is impossible are strictly null and void.” In other words, artifacts whose content is in contradiction with Article 27/1 of the TCO cannot be the subject of contracts.

  • Computer Programs (Software)

According to the law, a computer program refers to a computer command system that is arranged in a way that will enable a computer system to perform a special operation or task, and the preparatory artifact that will enable the formation and development of this command system.

Equipment; are the physical parts of the computer. It is only the program itself that is protected as a computer program, not the hardware. On the condition that “it will give rise to the result of the program in the next stage”, an artifact that has not been finalized as a computer program is also considered as a artifact of science and literature and is included in the scope of protection. Computer programs do not need to be embodied on CD or hard disk to benefit from protection.

  • Nonverbal Stage Artifacts

According to article 2/2, “All kinds of dances, written choreographic artifacts, pantomimes and similar nonverbal stage artifacts” are examples of this title.

It is the execution of artifacts with body language and facial expressions. The artifacts in question does not have to be literally nonverbal; it can be performed with a song. In this case, the song in the content of the show will be protected as an artifact of art expressed in language exclusively under the Law on Intellectual and Artistic Artifacts.

In dance performances expressed by the word “rax”, the element protected by the law is the “repeatable order” of the performance as a whole. For this reason, impromptu shows and sports competitions are not accepted as artifacts in this context.

  • Non-Aesthetic Photographs, Technical Studies, Projects and Models

According to Article 2/3, “all kinds of technical and scientific photographic artifacts, all kinds of maps, plans, projects, sketches, pictures, models of geography and topography and the like, all kinds of architectural and urban design and projects, architectural models , industry, environment and stage designs and projects” are protected within the scope of scientific and literary artifacts.

If they are of good quality, they are protected as artifacts of fine art.

“Know – How” is an important example for technical studies and projects that do not have a physical qualification.

Know-how means a confidential knowledge for application, obtained as a result of experience and trials. This definition also reveals that know-how is not known or easily understood by everyone, even when it is a whole or its parts are brought together.

 

B. MUSICAL ARTIFACTS

The Law on Intellectual and Artistic Artifacts defines musical artifacts as “Compositions with or without words of any kind.”.

In order for musical artifacts to be preserved, it is not necessary to convert the lyrics or notes into a written form.

The lyrics and composition are preserved both separately and as a whole. If a lyricist’s lyrics are turned into a musical work without her consent, there will be a violation of the work of science and literature and if a composer’s composition is used without her consent, there will be a violation of the musical work.

 

C. FINE ARTIFACTS OF ART

Fine artifacts of art  are:

  1. Oil and watercolor paintings; all kinds of pictures, patterns, pastels, engravings, beautiful inscriptions and illuminations, artifacts drawn or fixed with metal, stone, wood or other materials by engraving, carving, inlay or similar methods, calligraphy, serigraphy,
  2. Sculptures, reliefs and carvings,
  3. Architectural artifacts,
  4. Handicrafts and small artifacts of art, miniatures and decorative arts, textiles, fashion designs,
  5. Photographic artifacts and slides,
  6. Graphic artifacts,
  7. Caricature artifacts,
  8. All kinds of typifications , which have aesthetic value.

Fine art artifacts are counted as limited in the law.

There are two conditions for a artifact to be protected as a artifact of fine art:

  1. Having aesthetic value
  2. Entering one of the types of fine art artifacts listed in the law

It is not a requirement to have an aesthetic purpose when creating a product as a result of an intellectual effort. If it is desired to produce a technical product and a product with aesthetic value is created, that artifact is also protected as a artifact of fine art. The important thing here is that the resulting thing has aesthetic value.

 

D. CINEMATOGRAPHIC ARTİFACT

According to Article 8, “In cinema artifacts, the director, original music composer, screenwriter and dialogue writer are the owners of the artifact together. In cinema artifacts made with animation technique, the animator is also among the owners of the artifact.”

The producer was not counted among the owners of the artifacts just because he made a financial contribution.

The producer, who has duly taken over the authority to use the financial rights from the owner of the artifact, can claim financial compensation for the infringement of financial rights, but cannot claim non-pecuniary damage because he is not the owner of the artifact.

A artifact of cinema can be composed of songs, poems, dances etc. and each of these artifacts is also protected as a artifact. At the same time, the artifact of art is protected as a whole.

 

D. ADOPTED AND COMPILATION ARTIFACT

Adopted Artifact is the idea and art products created by using another artifact that is not entirely independent from the original artifact, but also has the characteristics of the creator.

Translated artifacts are the most important example of embroidery artifact.

The processed artifact must be in the same group as the original artifact in genre. Exceptionally, the filming of artifacts of music, fine arts, science and literature is considered within the scope of processing artifact.

The name of the original artifact and the owner of the original artifact must be stated in the embroidered artifact. There is no partnership between the author of the artifact and the original author.

Compilationery Work: These are artifacts that are formed as a result of intellectual creativity, which consists of selecting and editing content such as encyclopedias and anthologies, provided that the rights to the original artifact are reserved.

There is no requirement for originality in collected artifacts. The names of the collected artifacts and the owners of the artifacts must be specified. The protected element is the corpus itself. The artifacts in it are protected because it is already an artifact in itself.

The owner of the compilationery work cannot interfere with the content of the artifacts he has compiled.

 

MULTIPLE AUTHORS

Pursuant to Article 9, “If it is possible to divide the artifact created by more than one person into parts, each of them shall be deemed to be the owner of the part he brought into being. Unless otherwise agreed, each of the co-creators of the artifact may request the participation of the others for the modification or publication of the whole artifact. If the other party does not participate without a valid reason, permission may be given by the court. The same provision applies to the exercise of financial rights.”

In the hosting of a shared artifact, each of the owners of the artifact has a section that can be distinguished from the artifact that has been created.

In co-ownership of the work, the work constitutes an inseparable whole and it is not understood which part of the work the owners of the work have the right to. According to Article 10/1, “If the owner of the artifact, which is created with the participation of more than one person, constitutes a whole organization, the owner of the artifact is the union of those who brought it property.”

 

INCORPOREAL RIGHTS  OF THE AUTHOR

Incorporeal rights cannot be subject to interpersonal transactions or death-related dispositions. Moral rights are inalienable rights. Only the authority to use moral rights can be given to someone else by the owner of the artifact.

Article 19 regulates who can exercise moral rights after the death of the author. According to this; “… to be used after his death, to the executor of the will; If this is not appointed, it belongs to his surviving spouse and children, and to his descendants, parents, siblings, respectively.” These rights are considered to be acquired by law, not by inheritance. Persons who inherit the refusal will also be able to use the authority (authority to use moral rights) regarding the moral right of the owner of the artifact.

  • Release to the Public

If the artifact is presented to the public, the society gets information about the artifact and becomes public. However, it is not necessary for the artifact to be presented to the public for protection. The artifact will be protected from the moment it is created.

In order for the author to transfer his/her authority to present it to the public;  the author’s authorization to present the artifact to the public has to be in written form.

Otherwise, the owner of the artifact has the authority to prohibit the use of this right.

  • Authority to Designate the Name

According to Article 15, “The authority to decide whether to present the artifact to the public or publish it under the name or pen-name of the owner or anonymously belongs exclusively to the owner of the artifact.”

Pursuant to Article 11, “A person who uses his name or a well-known pseudonym as the owner of a artifact of fine art in the published copies of the artifact or a artifact of fine art is deemed the owner of that artifact until the contrary is proven.”

If the author presents the artifact to the public anonymously, he cannot benefit from the presumption of ownership.

  • Prohibition of Modification of Artifact

Unless the author gives permission, no changes can be made to the name of the author or to the artifact. Even if the owner of the artifact has given written permission, he can prohibit any changes that damages the honor and reputation of the owner of the artifact or damages the personality of the owner of the artifact. It is not possible for the owner of the artifact to waive the prohibition authority by contract.

In order to make changes in the artifact;

  • The author’s written permission to make changes to the artifact
  • The change to be made in line with the permission given by the owner of the artifact should not be such as damage the honor and reputation of the owner of the artifact, and not spoil the content of the artifact and the personality of the owner.

Article 16/2 states: “A person who processes, makes available to the public, reproduces, publishes, represents or otherwise disseminates a artifact with the permission of the law or the owner of the artifact; It may also make the necessary changes due to the processing, reproduction, representation or publication technique without the special permission of the owner of the artifact.” an exceptional circumstance. In the presence of these conditions, mandatory changes can be made on the artifact without the special permission of the owner of the artifact.

  • Rights Directed to Owner or Possession

The owner of the artifact has the right to request to benefit from his artifact for a temporary period. If the artifact is unique and original, the owner of the artifact may request the artifact to be returned by fulfilling the protection conditions in order to use it in artifacts and exhibitions covering all periods of his own.

The owner of the artifact can save on the artifact according to the terms of the contract he has made with the owner of the artifact. However, it cannot spoil or destroy the artifact and cannot harm the rights of the owner of the artifact.

In the case of using the rights of the owner or the possessor, the property right is limited due to the rights of the owner of the artifact.

 

FINANCIAL RIGHTS OF THE AUTHOR

Financial rights, unlike incorporeal rights, are transferable and subject to legal proceedings.

  • Adaptation

It is possible to create a artifact by processing artifact without obtaining permission from the owner. Pursuant to Article 21, “the right to benefit from a artifact by processing it belongs exclusively to the owner of the artifact.” In other words, in order for the owner of the artifact to gain a financial benefit from the artifact, it is necessary to obtain the permission of the original artifact owner.

  • Replication

It is the process of obtaining a copy of a artifact in a way that allows it to be used again and again.

  • Right of Distribution

Copies of the artifact are made available to the public.

  • Right of Performance

It is to read, play and show in public places directly from a artifact or with instruments used to transmit signs, sounds, or pictures. It is presented to the public in a way that can be perceived through the senses. The audience he is addressing witnesses this activity only for the moment.

  • Communication to the Public

What is meant by the expression “public” is an unlimited (indefinite number) group of people who come together without any special bond.

The right to be transmitted to the public by means of institutions such as radio-television or by means of sign, sound, or image transmission, including digital transmission, belongs exclusively to the owner of the artifact.

 

IN CASE OF VIOLATION OF INTELLECTUAL RIGHTS

If there is a contract, action is taken on the grounds of contravention of the contract, and if there is no contract, according to the provisions of tortious act.

Competent Court; Intellectual and Industrial Rights Court.

1) Cases that do not require the conditions for the right owner to suffer damage and the other party’s fault for liability:

Declaratory Action

This case can be opened to determine whether there is an actual infringement and who the owner of the artifact is.

The detection case is not regulated in the Law on Intellectual and Artistic Artifacts, it is opened according to general provisions.

In case the owner of the artifact dies, the persons listed in article 19 can file this lawsuit within 70 years. The violation of the law is sufficient and the existence of fault is not required. The person whose right has been violated must have a legal interest in order to file a determination lawsuit. This case is heard in a contentious trial procedure.

Action for Prevention of Infringement

The owner of the work can file this lawsuit if her financial or moral rights are exposed to the danger of attack or if the continuation or repetition of the attack is considered probable. The fault of the rapist is not sought.

Action of Trespass

The financial or moral rights of the author must have been violated, and the attack or its effect must continue. The fault of the violating party is not sought.

Prohibition and Refusal of  Infringement can be asserted in the same case.

  • In case of violation of incorporeal rights

Article 67/1,2 – “If a artifact that has not yet become public is presented to the public without the consent of the owner or against his will, the lawsuit for the trespass of infringement can only be filed if the public offering is made by publishing the duplicated copies. The same provision is also valid in cases where the name of the artifact is given against the will of the owner.                                                                                If the name of the owner is not mentioned at all on the artifact or the name is misplaced or the name is of a nature to cause confusion and the owner of the artifact has requested the ref of the infringement other than the determination case mentioned in Article 15, the infringer is obliged to compile the name of the owner of the artifact, both on the original and on the duplicate copies in circulation. Announcement of the verdict in maximum 3 newspapers can be requested at the expense of the violator.”

If the artifact has been unfairly modified, the right owner may make the following demands:

  1. The owner of the artifact may request that the modified reproduction of the artifact be prohibited from publishing and representation, broadcasting and representation, broadcasting by radio and that the infringer corrects the changes in the reproduced copies in circulation or reinstates them. If the change was made during the publication of the artifact in a newspaper, magazine or radio, the owner of the artifact may request, at the expense of the infringer, to correct the change by means of an announcement from all newspaper, magazine and radio administrations that have published the artifact in a modified form.
  2. In artifacts of fine art, the owner of the artifact may request that the original change was not made by him or that his name in the artifact should be removed or changed. If it is possible to restore the old state, the owner of the artifact can make the artifact old, if the removal of the change does not seriously harm the interests of the public or the owner.
  • In case of violation of financial rights

FSEK article 68/1,2,3 “Those who process, reproduce, distribute, represent or transmit any kind of sign, sound or image to the public without the written permission of the right holders in accordance with this Law, Rights holders whose permission has not been obtained may request up to three times more than the price they may request if the contract has been concluded or the current value to be determined in accordance with the provisions of this Law.

If the unauthorized reproduced copies are not put up for sale, the owner of the right may demand the destruction of the reproduced copies, films, molds and similar tools used for reproduction, or the delivery of them to him for a reasonable price not exceeding the production cost price, or three times the amount he may request in case of a contract. This does not remove the legal responsibility of the unauthorized duplicator. If the copies reproduced without permission are put up for sale, the right owner can use one of the options in the second paragraph about the copies in the hands of the infringer.”

Pursuant to article 68, the right holder has three electoral rights:

  1. Paying at most three times the price that could be claimed if a contract had been made or the current value to be determined,
  2. Destruction of reproduced copies, films, molds and similar tools used for reproduction,
  3. Giving him the reproduced copies, not exceeding the cost price, and the films, molds and similar materials used for reproduction in return for a reasonable price.

 

2) Cases requiring the conditions that the right owner has suffered damage and the other party’s fault for liability:

Pecuniary and Non-Pecuniary Damages Actions

The right holder must have suffered damage and the party who committed the tortious act must also be at fault. Both can be requested together.

You can contact us here for detailed information on the subject.

You can get detailed information about the work of our office in the field of Contracts Law on our website.

Sıla GÖKÇEOĞLU (Student Intern)

Uçar Law & Consultancy Office

 

 

 

[i] Yargıtay Kararı – 11. HD., E. 2015/12923 K. 2017/2724 T. 9.5.2017

 

Diclaimer:

This article is prepared by Uçar Law & Consultancy Office for information purposes only, and the information and visual materials contained in it cannot be used, reproduced, published, transmitted to a third party or translated without prior written permission from us. This legal memorandum is not a comment or legal opinion and was prepared on the publication date and our attorney’s office is not responsible for its failure to
update continuously.”

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