Protection of intellectual and artistic works and their authors is one of the most important factors for cultural development. Legal protection encourages entrepreneurs and promotes innovation, thus contributes to the growth of the economy. Today, most of the intellectual and artistic works are created by the employees within the scope of the employment relationship. Therefore, the protection of the author's rights, on the one hand, and balancing the rights of the employer and the employee, on the other hand, are essential elements for the growth of business life.
Law on Intellectual and Artistic Works No. 5846 ("Law") adopts the reality of the creation principle. According to this principle, and as stated under Article 1/B(b) and Article 8 of the Law, the author of the work is the person who created it.1 However, if the work is created by an employee during the performance of the employee's duties and obligations arising out of the employment contract, the employer also has rights arising out of the Law. As per Article 18/2 of the Law, "The employer is authorized to use the rights of the works created during the course of the employment unless otherwise is understood from the contract between the parties or from the job the employee has undertaken." The Law rejects the approach of employers being acknowledged as the author of the work, but rather accepts that the employer is entitled to use the rights to the work.2 In another words, whilst the authorship status of the work rests with the employee, the employer benefits from the economic rights associated with the work.
The rule of the employer's rights to use the work created by the employees is also valid for works created by the bodies of entities, freelance employees, employees working on order, and other similar persons.3
Characteristics of Employers' Rights of Created Works
The rights associated to created works are economic and moral. Whilst the economic rights are rights of adaptation, rights of reproduction, rights of distribution, rights of performance, rights to communicate a work to the public through devices enabling the transmission of signs, sounds and/or images, the moral rights are rights to publicize, rights to designate the name, rights of prohibition of modification of work, and the rights of the author against the owner and possessor (such as the author's right to recall the sole and unique work to be returned).
Article 18 of the Law regulating the employer's rights over the works created by the employees, does not clearly state which rights the employer has the power to use. Although justification of the Law4 explains that moral and economic rights to the works created by employees may be used by employers, the majority view by academia states it should be accepted that the power to use the moral rights remains with the employee, and the employer is solely entitled to use of the economic rights to the works, by explaining that Article 18/1 sets forth that the author is solely authorized to use the economic rights, and Article 18/2 regulates the exception to this rule.5 Likewise, the implementation of Supreme Court rulings is in line with the academia by only allowing employers the right to use the economic rights on the works created by employees.
The employer's power to use the economic rights is an absolute right that can be enforced against any person.6
Requirements to Assign to the Employer the Power to Use Economic Rights
Requirement of the Creation during the Course of Employment
Pursuant to Article 18/2 of the Law, in order for the employer to use the economic rights to the work, the work should have been created by the employee during the course of employment. For instance, the employees working in companies that design computer programs, newspapers, and architect offices are deemed to create work during the performance of their duties arising out of the employment contract.7 As long as the work is created during the performance of duties, the premises where the work is created is not relevant.
Due to the requirement of the creation of work during the course of employment, if there is no connection between the work and the duties of the employee, the employer shall have no rights over the work.
The Requirement of "Unless Otherwise is Understood from the Contract" or due to the Characteristics of the Job
Article 18/2 of the Law includes the phrase of "unless otherwise is understood from the contract between the parties or from the job the employee has undertaken." In accordance with this phrase, due to the characteristics of the employee's duties, or the contract executed between the employer and the employee, it may be decided that the employee, rather than the employer, shall have the economic rights over the work.
No Requirement for a Written Assignment Agreement
As per Article 52 of the Law, all agreements and acts of disposal as to the assignment of economic rights shall be in writing, and the economic rights to be assigned should be specifically stated in order to be valid and enforceable. Although Article 18/2 of the Law designates the power to use the economic rights, whether the execution of a written agreement is required as per Article 52 creates a conjecture. Pursuant to the Supreme Court precedents, the employer's power to use economic rights arises out of the law; therefore, there is no requirement for a written assignment agreement as per Article 52 of the Law, unless otherwise is agreed by the parties.
Employer's Rights in Comparative Law
Two different principles are encountered when the rules of foreign laws regarding employers' rights over the works that have been created by employees are examined.
The common law countries (UK, USA and Australia) and Japan recognize the "work made for hire" principle. Pursuant to this principle, the authorship of the work created by the employee during the course of employment shall belong to the employer.
On the other hand, the civil law countries and China reject the "work made for hire" principle, and recognize that the authorship of the work created by the employee shall rest with the employee by providing various limitations in each country in favor of the employer similar to the provision of Article 18/2 of the Law.
In Turkey, until the Law on Amendment of Various Articles of the Law on Intellectual and Artistic Works No. 4630 amended the Law on 03.03.2001, it was accepted that employers may, in rare instances, be considered as the authors of the work aside from the reality of the creation principle.8 However, following the stated amendment, this approach was abandoned, and it is now accepted that the author shall be the employee who created the work, and the employer shall only have the power to use the economic rights over the work.
According to the Law, the author of the intellectual and artistic work is the person who created it; however, if the work is created by an employee arising from the employment relationship, the employer shall be entitled to the economic rights over the work. In order for the employer to be entitled to the economic rights, such work shall have been created during the performance of the employee's duties, and to the contrary should not be taken from the contract, or from the characteristics of the job that the employee has undertaken. Since the employer's right arises out of the law, the employer and the employee do not have to execute a written contract for the employer to use the economic rights over the work.
1 The creator of the copyright work ipso jure becomes the author of the work after the creation. Although Article 13/3 designates that all works within the scope of the Law may be registered, this registration process is voluntary; therefore, the registration does not have a constituent effect.
2 Tekinalp, Ünal: Fikri Mülkiyet Hukuku, Güncelleştirilmiş ve Genişletilmiş 5. Bası, İstanbul, 2012, p. 144.
3 Karahan (Suluk/Saraç/Nal): Fikri Mülkiyet Hukukunun Esasları, 3. Genişletilmiş Baskı, Ankara, 2012, p. 77.
4 https://www.tbmm.gov.tr/sirasayi/donem21/yil01/ss402m.htm (Access date: November, 2019).
5 Yıldız, Özge: Çalışanların Meydana Getirdiği Eserler, İÜHFM C. LXXII S.2, 2014, p. 502 ( https://dergipark.org.tr/en/download/article-file/97940) (Access date: November, 2019).
6 Y. L., Fikri Mülkiyet Hukuku, Dördüncü Bası, İstanbul, 2005, p. 135-137, cited in the decision of the Supreme Court Assembly of Civil Chambers dated 22.06.2011, numbered 2011/11-401E, 2011/441K. (https://www.lexpera.com.tr/ictihat/yargitay/hukuk-genel-kurulu-e-2011-11-401-k-2011-441-t-22-06-2011 ) (Access date: November, 2019).
7 Yıldız, p. 516.
8 Gökyayla, Emre: Fikir ve Sanat Eserleri Kanununda Yapılan Değişikliklerin Değerlendirilmesi, Dokuz Eylül Hukuk Fakültesi Dergisi Cilt:7, Sayı:1, 2005, p. 17. ( https://hukuk.deu.edu.tr/dosyalar/dergiler/DergiMiz7-1/PDF/gokyayla1.pdf) (Access date: November, 2019).
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