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
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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On 8 September 2016 (C-160/15), the CJEU ruled that the posting of a hyperlink to copyright-protected works located on another website does not constitute copyright infringement when the link poster does not seek financial gain.
The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
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