Turkey: A Recent Expert Report; A Good Sign For Turkish Copyright Practice

Last Updated: 13 July 2009
Article by Bilge Saltan

The Turkish Code of Intellectual and Artistic Works numbered 5846 has been in force for more than 50 years however, the application of this law is not that established creating significant problems to the work owners while collecting their rights.

The law numbered 5846 defines five different financial rights for the work owners, which are right to adapt, right to duplicate, right to disseminate, right to perform and right to broadcast. However, the diversity of use of an artistic work which appears in practice and their different economical value create various differentiations in definitions of financial rights under the law. For instance, despite the law only defines a general representation right, depending on the type of the use of the work, each representation is interpreted as a different appearance of the representation right such as the differentiations emerge in relation to classical musical work uses. Indeed, while a non-dramatic public performance of a classical musical work is considered to create small rights for the work owner, "the dramatic performance of a musical work in combination with another work" such as operas and ballets, creates so called "Grand Rights". In addition to these, since it is impossible to perform a classic music work without having its notes, the work owners while permitting the use of their work, also claims "hiring fees". Needless to say, the relevant Turkish legislation regarding copyright protection is totally silent in regards to small right - grand right differentiation or the right to claim hiring fee of the work owner.

This limited content of the law creates additional problems in collection of the financial rights. Because under Turkish law, despite the work owner is granted the sole right of collecting its financial rights, sometimes he/she may be in conflict with the professional unions. The professional unions are established by the law numbered 5846 in order to facilitate the collection of the rights of the work owners who may in some circumstances be vulnerable against the performers or producers. However, the unfortunate statement of the article 41 of the law numbered 5856 which states that "work owners can only reach their rights through professional unions" gives the impression as if the work owner cannot collect his /her rights personally without the interference of a professional union. In fact, this wording of the article 41 is tried to be explained with the other legislative documents regarding copyrights stating that only under circumstances where the work owner transfers his / her right to collect the rights to a professional union, then it would be the professional union which may collect the rights. However, the performers and sometimes even the professional unions by relying on the wording of article 41 and ignoring the spirit of the law and the other clear statements of the relevant legislations may claim that the work owner cannot personally collect his/her rights.

Finally, an expert report taken in a lawsuit filed by a right owner of a classical musical work may constitute a solid response to the above stated issues. Indeed in that lawsuit the right owner filed a lawsuit for the infringing use of a classical musical work by the defendant and claimed compensation which shall be calculated by considering hiring fees of the notes and the grand rights of the right owner over the work.

In such report given by a board of academicians, it is certified that the intellectual property rights law is a branch of private law and the parties are free to determine their rights and liabilities upon their own discretion. Also, the right owners are free to decide how to collect their financial rights. Accordingly, they may collect their rights directly by themselves without any intervention of a professional union, or with the help of a professional union or they may collect some of their rights through a professional union and collect the rest directly by themselves. The experts also affirmed the differentiation of grand rights and small rights and the right of the work owner to claim hiring fee for the notes. In fact, the acceptance of hiring fees for the notes was the first time in Turkish copyright practice in a lawsuit.

In addition to these determinations, the experts were also gave a positive opinion regarding the higher copyright claims for grand rights. Indeed, the experts accepted fees such as between 8000 Euros and 10.000 Euros per performance to be paid to the right owner. In fact, we believe that the right owner should be able to freely determine the price of its work upon its own discretion. However, Turkish copyright litigation practice is not on such point yet. In any event, the determinations reached in this lawsuit should be seen as a good sign for an established copyright practice which is more beneficial to the work owner.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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