Mesrutiyet Avenue, Ersoy Business Center, No: 102/11-12 Floor: 5 Beyoglu 34420 ISTANBUL / TURKEY


February 24, 20150

According to the Turkish Law on Intellectual and Artistic Works (Fikir ve Sanat Eserleri Kanunu, also known as FSEK), no. 5846, and to the international agreements, the intellectual and artistic works are classified into some specific types such as scientific and literature works, musical works, cinema works, fine artistic works and processed works.

The rightful owner of an intellectual and artistic work is its creator. The creator, with a more accurate legal term, the author uses the moral and financial rights, which are listed below. However, as well as the author, the neighbouring right holders also own the financial rights over the performances and recordings of the work.

The moral rights of the author are right to the work in any time and place desired by the author, right to give information about the work’s contents, right to have his/her own name as the author, right to ban alterations in the work and right to protect the integrity of the work. These rights mentioned above belong to the author and his/her successors and they cannot be transferred to others. However, the authority to use these moral rights can be transferred and the author might give permission for the alteration of his/her work.

The financial rights of the author and the neighbouring right holders are processing, reproduction, broadcasting, performance, public communication with media that enable sign, sound and/or image transfer, share obtaining and following rights. Now, we’ll explain the financial rights in details.

To use an intellectual or artistic work, a contract should be made with the author or his/her successors. The authority to use might be granted with a bilateral contract or an unilateral article of the right holder.

About the financial rights listed in FSEK, there are three forms, namely the transfer, licence and permission, which enable right achievement of other parties.

The first form is “transfer.” The transfer enables the transferee to use all financial rights about the transferred financial rights, unless prohibited with the contract, to transfer the mentioned rights as a whole or partially and to vest rights on the transferred financial rights. In the transfer, the transferred right leaves the transferor’s proprietorship. As a matter of fact, those who take over the right have taken over “an exclusive right.” Here, the transferred right is removed from the transferor’s proprietorship with the contract; therefore a specific regulation should be included in the contract to restrict the right somehow. If any kind of constraint is excluded at the contract, the transferee might be able to use these financial rights as if he/she is the author. According to 52th Article of FSEK, the essential conditions for the validation of a transfer contract are having the transaction in written form and showing each type of right seperately. Even in some very exceptional cases, which violate the 2nd Article of Turkish Civil Code, the Turkish Supreme Court overlooks the existence of a written contract.

One of the issues on which the Supreme Court and scholars both agree is the need to list seperately all of the authorities and permissions vested, when transferring or assigning the financial or moral rights. Sentences or phrases such as “I’ve transferred my financial rights” or “I’ve transferred all of my rights” are considered as unclear, therefore invalid. Here, the listing is competent when the rights are mentioned in headlines such as broadcasting, reproduction or public communication. Otherwise, a very meticulous listing such as phonogram, cassette, CD, music video for the broadcasting right or radio, television, internet for the public communication is not required. For example, an expression like “I’ve transferred my public communication right” includes all types of public communication.

The Turkish Supreme Court concludes that, after a transfer, the author loses his/her financial rights over the related works.

But, if a contract is acted by seperately naming media such as phonogram, CD, cassette instead of common terms of “reproduction” or “public communication,” it should be considered that, the other rights which are not listed the contract, such as making the public available by internet are intentionally excluded. With such a logic, if there’s an expression such as “I’ve transferred my reproduction rights via means such as phonogram, CD, etc,” we conclude that all financial rights included in the concept of reproduction are transferred.

Here, another important point is the regulation of processing right differently from the transferring system, which requires the basic title naming of all rights. That is, with the expression of “I’ve transferred my processing right,” we cannot transfer all of our processing rights like the “I’ve transferred my reproduction and public communication rights.” On Article 55 of FSEK, it is declared that “unless otherwise agreed, the transfer of a financial right or granting a right does not extend to the translation or other processings of a work” .

According to FSEK, the second form of right achievement is the “licence.” The licence is authorisation of right usage granted by the assigner to the assignee, which enables the right to remain in the proprietorship of the right holder. The difference of licence from the transfer is, its granting merely the authority to use about some specific right or rights. Authorisations such as “Printing ten thousand copies of the book,” “public communication via internet for two years of time,” “reproduction via means of cassette, CD and all other technical or digital media” or “using the musical work as the homepage background theme” or usage authorities could be regarded as an example of licence. Unless the licence prohibits the financial right holder to assign the similar licence to other parties, it is considered as a “simple licence.” Unless otherwise is comprehended from the law or contract, each and every contract is considered as simple. On the simple licences, the regulations about the lease of a revenue-generating asset are binding. If the conditions exist, the simple licences might be revoked or annulled. If the assigned financial rights are specific to only one person (individual or legal entity), it should be considered as an “exclusive licence.” This legal transaction is exclusive; that is, the assigned rights are now at the disposal of the assignee and they are removed from the proprietorship of the author. In this case, the “exclusive licence” yields the same results with the “transfer.” On the exclusive licences, the regulations about servitude are binding .

FSEK Article 80 has created another form of right achievement named “permission,” thanks to the phrases of “with the permission of the author” and “with the permission of the performer artist.” The phonogram producer or film producer obtains a permission for the initial fixing right. Again, the performer artist obtains a permission from the author for the performance right. Here, it would be useful to discuss the legal context of such permissions. According to our opinion, the permission cannot be regarded same as the “transfer” or “licence.” This type of right achievement is a legal exception, having the nature of an exclusive right, which posesses similar terms with “transfer,” regarding the transferee. The permission stated in the introductory part of FSEK Article 80 is not a transfer contract which requires the seperate listing of the financial rights. As a consequence of possessing such a permission, the performer produces his/her performance and the phonogram producer produces its phonogram. Whenever the above mentioned products are produced, the permission holders have a master record, which has a neighbouring right that cannot be intervened or violated by the permission givers. For this master record, those who has already given a permission or the court cannot claim ill or insufficient usage of the right, therefore they cannot demand to confiscate the sound record or phonogram. This record belongs to the performer artist about his/her own performance and/or after getting a permission from the performer artist, to the phonogram producer. At this stage, the “transfer” of the authority to use the financial rights, stated in (B) section of FSEK Article 80 steps in. Although the article has an expression of “the authoritiy to use the financial rights,” here the main subject is the “transferring” transaction. Such transactions are acted together with the “permission” transaction at the same contract simultaneously and usually, the contract has been acted with the will and intention of transfer. In these contracts, either the financial rights are transferred by using the terms of “processing, reproduction, etc.” without including further details or they are transferred with an unconstrained list, such as “reproduction via recording to the phonogram, cassette, CD and similar recording media, broadcasting (public performance) via radio, TV and other means.” As a matter of fact, considering the financial rights, this permission and the transfer of the authority to use the financial rights vest the right holder with equal legal rights to the “author” and grant more rights in comparison to the transfer, as it is stated in the judgements of the Turkish Supreme Court. In this case, the permission of the neighbouring right holders is sufficient for the broadcasting of music and cinema works via internet. This view might be expanded to some further horizons like “there isn’t any need to obtain permission from the authors,” regarding the purpose of the contract.

Another question arising here is whether there are restrictions for those, who take over financial rights like broadcasting via radio, TV and internet or who obtain licences, when they transfer these rights to the third parties. In practice, the right transfers of phonogram and film producers who have the work operation certificate are widely noticed. If the legal transaction of “transfer,” mentioned in the first paragraph of FSEK Article 48, the right is removed from the proprietorship of the author and added to the proprietorship of the transferee, therefore there is no need to obtain an extra permission from the author for transferring the related right to a third party. If there aren’t any regulations for the transfers to the third parties at the contract itself or such a prohibition is specificly excluded, this will be the exact case.

If the licence transaction set forth at the second paragraph of Eğer FSEK Article 48 is conducted, then the situation should be evaluated in two different options. The Article 49 of FSEK puts the matter as “those who acquire a financial right from the author or his/her successors or the licence to use such a right, might only transfer this right or the usage licence to another one, only with the written approvals of mentioned people.” Here, at the article 49, two different types of licences, namely “a financial right … licence” and “licence for the usage of a financial right” are mentioned and the transferring transaction stated at the first paragraph of Article 48 is left unmentioned. About this matter, some speculations might be done regarding various examples. At our first example, the author might have given permission to transfer the licence to the third parties with an additional article of the contract; consequently, there isn’t any obstacle for the transfer. For the transfer or transfers, an overall permission might be given or seperate regulations might be included for each incident. At the second example, the permission of right transfer to the third parties is not clearly expressed at the contract; if Company A has obtained licence from the author or his/her successors, it will definitely need the written approval of the licence givers before conducting the transaction. The Company B might transfer the right it has acquired to C with a written approval and C might transfer the right to D, again with a written approval. Otherwise, Company A cannot transfer the financial right or assign the authority to use to B. At the third example, there’s a transfer prohibition to the third parties at the contract. Therefore, at this last example, there isn’t any opportunity for transfer transactions regarding the third parties .

1-Unal Tekinalp, Fikri Mulkiyet Hukuku (Intellectual Property Law), Istanbul, 2004, p.152-160
2-11.H.D., 27.12.1999, E. 1999/9039, K.1999/10796 …for the second transfer of the processing right, the permission of the author is required …
3-Tekinalp, a.g.e., s.212 v.d.
4-11. H.D. 27.04.1998, E. 1998/1104, K. 1998/2748

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