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I. Work and Author

Within the scope of the Law on Intellectual and Artistic Works numbered 5846 (“Law”);


“Work” is a product of any kind of idea and art that is the property of its author and is divided into four main categories: (i) science and literary, (ii) music, (iii) work of art and (iv) cinematographic work. The adaptations and compilations are also regulated as a separate work category in the Law. Under these categories, various work products bearing the characteristics of the relevant category are considered as exemplary. 


“Author” is the person who creates the work with the most general definition. As the author may be an individual, more than one persons may also be the author of the work. If there is a work that is created in a manner that will constitute an integral whole, together with the characteristics of more than one person, joint authorship shall be mentioned; if there is a work that is formed by combining individual works that are of the characteristics of more than one person, but each created by a different person (s), which can be divided into independent parts, multiple authorship shall be mentioned. In the case of joint authorship, the author of the work is the union of those who created it..[1] In a collective work, everyone is deemed to be the author of the part they created. In some exceptional cases stated in the Law, the author of the work may be a person other than the person who created it.[2]


II. Rights of the Author



In the Law, two kinds of rights are basically given to the author of the work. These are financial and moral rights.   Moral rights; are the absolute rights aiming to preserve the relationship between the author’s own personality and the work he created during the creation of the work. In the Law, it is regulated as right to publicize, the right to be specified as the author of the work, the right to protect the integrity of the work and the right to reach the original work under four categories in accordance with the principle of numerus clausus. Not moral right itself, but its use can be transferred to third parties.


The financial rights that constitute the subject of this article are the rights that aim to obtain economic benefit from the created work and unlike moral rights, it is only possible with the publicization of the work.


2. Financial Rights of the Author 

Financial rights are defined in the Law within the principle of numerus clausus just like moral rights. Unlike moral rights, in addition to the exercise of these rights, the right itself (ownership) can also be transferred. 


Since financial rights are not interdependent, disposal and use of one of these do not affect the other. In the transfer of financial rights, the subject financial rights must be specified separately and this contract must be made in written. In order to use a work without taking over the ownership, the right to use must be taken over from the author.[3]Transferring only the right to use financial rights is also subject to the procedure for the transfer of financial rights and is made under the license agreement. It is possible for the financial rights to be foreclosed or pawn.

The financial rights regulated in the Law within the principle of numerus clausus are as follows :

a. Right of Adaptation: Adaptation is the creation of a new intellectual and artistic product by taking advantage of an existing work, without being completely independent of the original work, but at the same time in a way that carries the personality of the person who is adapting the work. The newly created intellectual and artistic product may be a product in the same category as the original work or it may be a product created within a different category. The most common type of adaptation work is translations; turning works such as novel, story, poetry and theatre play into another one of these kinds, turning scientific and literary works into movies, or turning into a form suitable for filming and broadcasting by radio and television, musical arrangements and compositions, explaining or annotating or shortening of a work belonging to someone else, making changes in a computer program are considered as adaptation under the Law.


The right to take advantage of a work by adapting it belongs exclusively to the author of the work. A third person can only adapt a work with the permission of the author. For example, in case a movie that is a continuation of a movie based on its subject and other characteristics, will be made by a third person, permission from the authors of the first movie will be required for the second film (adaptation).[4]


The author of the adaptation work produced with the permission of the original author is the person(s) who adapted the work without prejudice to the financial rights of the original author, this person(s) can benefit from the rights granted to the authors of the work in the Law. It depends on the permission of the original author to adapt a new work from the adapted work.


b. Right of Reproduction: Reproduction is the making the copy (s) of the work, which allows it to be repeated. In this context, the copy is to save the work so that it can be reproduced or transmitted on a material means. Making a second copy of the original works or recording the work in any means that is known or to-be-developed in the future for the transfer and reproduction of signals, audio and video, the implementation of plans, projects and sketches of all kinds of sound and music recordings and architectural works are also considered as reproduction. The same rule applies for embossing and perforated molds. The right of reproduction also includes the actions of loading, viewing, running, transmitting and storing the program to the extent that the computer program requires temporary reproduction.


The right of reproduction the original or copies of a work in any form or method, in whole or in part, directly or indirectly, temporarily or permanently, belongs exclusively to the author of the work. Reproduction of the original or copies of the work is possible with the conveyance of this right or its use by the author of the work, except for replicas[5] intended for personal use without the purpose of any profit.


The most common example of a violation of the right of reproduction may be the copying and reproduction of motion pictures and musical works. In order to prevent unauthorized reproduction and imitation of intellectual and artistic works; it was made mandatory to paste banderole, which has a label with a holographic security label, on the reproduced copies of musical and cinematographic works and non-periodical publications.


c. Right of Distribution: To rent, lend, put up for sale or distribute in other ways, to put it on the market of the original or reproduced copies of that work means the distribution of its original or the copies.


Right of distribution belongs exclusively to the author. For example, selling a novel by printing is considered within the framework of the right of distribution. On the other hand, making a cinema movie available to watch (streaming) without recording it to a material means online in return of a payment (reproduction) should not be deemed as renting or lending it out (spreading). As a matter of fact, it is necessary to rent or lend copies of the work that have been recorded in a material means for spreading. The publication of a work or its reproduced copies in the form of renting or lending cannot lead to the common copying of the work in a way that harms the author’s right to reproduce.  


In this context, it can be said that in the pirated DVDs in the market, both the right of reproduction and the right of distribution of the author have been violated.[6]


The right to bring the copies reproduced abroad with the permission of the author into the country and the right to benefit from them by distribution belongs exclusively to the author. Copies reproduced abroad cannot be imported without permission of the author and/or the owner of the right of distribution who has the permission of the author, under any circumstances.


In case of the transfer of the right of distribution of certain copies by sales method and as a result of the use of distribution right by the holder who conveyances this right makes the first sale or distribution of these copies within the borders of the country, the author can no longer prevent the resale of these works that were first sold and distributed. Exhaustion of the right is mentioned here.[7] However, in case the author has not transferred the power of renting and lending to public, can always exercise his right to distribution through the method of renting and lending to the public.


d. Right of Representation: It is the reading, performing, playing and screening of a work in public places with the tools used directly or with transferring the sign, sound or picture. The transfer can be made directly, without interception or any transfer means (direct representation), it can also be made by determining a work, that has already been read, performed, played or shown, on a material means and transferring through this means (indirect representation).[8] The performing of a theatrical work (direct representation) can be shown as an example to direct representation and recording this theatrical work during the performance and transferring this recording simultaneously during the representation or later to the audience can be shown as an example to indirect representation. The important thing in the representation is that this presentation is temporary and exclusive to that moment, and it is held in a public place suitable for public benefit. The difference of representation from reproduction is that it is not registered (undetected) in a material means.


The right to benefit from a work by representing belongs exclusively to the author. The transfer of the right of representation covers only the right to direct representation, unless there is a clear provision in the contract. The right to transfer of representation to another place other than where it took place by any technical means to be publicized also belongs to the author. In other words, unless otherwise regulated in the transfer agreement, the transferee who receives the right of representation, may perform the theatrical work through a technical means only if the author also has permission for indirect representation. 


e. Right to Publicize with means for Signal, Audio and/or Video Transmission: It is the right to publicize the original or reproduced copies of a work through wired or wireless broadcasting organizations such as radio-television, satellite and cable, or including digital transmission or by broadcasting with means used directly or with transferring the signal, audio or video including digital transmission and by republishing these published works, by taking from the publications of these organizations, by other broadcasters. 


This right exclusively belongs to the author. The author also has the right to give permission or forbidding the sale of the work’s original or its copies through wired means or distribution of those in other ways or submission of those and providing access for real persons for anywhere and anytime. The distribution and submission of the works by publicizing regulated by this article does not violate the author’s right to distribution. For example, as we often encounter during the Covid-19 pandemic period, it is considered within the scope of this right that many theater plays could be watched through their camera recordings through various social channels.


f. Share and Tracking Right: Except for architectural works, after the first sale of the works that are stated in accordance with the principle of numerus clausus in article 45/1 of the Law, as it is valued within the protection period, as they change hands as a matter of sale in an exhibition or auction or in a store that sells such items, or in other ways, in exchange for high amounts, if there is a clear discrepancy between the last sale price and the previous sale price, in every sale, the person who makes the sale, is obliged to pay an appropriate share of this price difference to the author, if he is dead, to his legal heirs and spouse up to the second degree (and including this degree) according to the inheritance provisions, if not, to the relevant field professional association within the framework of the procedures and principles to be determined by the Presidential decision. For example, heirs will have the right to demand a share from the sale of a violin made by a musical instrument maker who gained fame after his death.


Att. Kortan TOYGAR

[1] Since the technical services or details of the assistance provided at the stage of the creation of the work do not reach the specifying level of the work, they do not give these people the right to be the author of the work.

[2] These exceptional authors are “employers” and “legal entities” and the rights used for these authors are financial rights only.

[3] If the author is dead, obtaining permission from his heirs is obligatory. If the author or his heirs cannot be reached, it is not possible for a permission to be given by the Ministry of Culture and Tourism for the use of the work.

[4] If the second movie was created by only adapting the script without taking advantage of the shooting techniques or other characteristics in the first movie, in this case, deeming the script writer of the first movie as a co-owner, permission will be required only from the script writer or the rightful owner of the right to whom he conveyances this right.

[5] This reproduction may not harm the legitimate interests of the rightful owner without a just cause or be against the normal use of the work.

[6] Copyrigts and Cinema, p. 34, Att. Burhan Gün, ADF  Cinematographic Work Owners Professional Society, 2015

[7] The principle of territoriality has been adopted in the exhaustion of the right.

[8] As an example of indirect representation, recording of a theater play during the perfomance and transferring it to the audience simultaneously with the representation or later can be given.


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