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Legal ReviewMAKING CHANGES AT A BUILDING WITHOUT THE PERMISSION OF THE ARCHITECT

February 24, 20150

Pursuant to Art. 35 of Turkish Constitution, every person is entitled to claim property and heirship rights and these rights can only be restricted for the purpose of providing public interest and with a law. Noone can use his property right to the disadvantage of the public.

Either the building’s owner has the building constructed by giving an order to the architect in terms of a service contract or purchases it afterwards, he is entitled to use it according to his own needs and interests. This authority is based on the “property right” of the owner, which is provided by the relevant articles of Turkish Civil Code. Art. 683 of the Civil Code sets the property right forth as follows: “The owner of something is entitled to use, benefit and dispose that thing, within the limits of the rule of law. The owner is entitled to file a claim in court against the person who keeps his property in wrongful means as well as claiming prevention of all unfair interventions.”

The owner of a building can make alterations and extensions within the limits permitted by the building regulations and in most efficient means. Moreover, according to the amended provisions of building regulations, making changes and alterations is both a duty and right of the owner. In such cases, the architect, as the author of the building, cannot prevent the changes. According to the Swiss jurisprudence, if fundamental alterations are required for maintaining the economical functioning of the building, such a circumstance is assumed to be comparable with deconstruction and re-building and the architect is not entitled to claim for any kind of indemnification .

According to Turkish legal system, even though Civil Law grants these exclusive rights to the owner, there are certain restrictuons regarding Intellectual Property Law. While making changes and extensions, the owner should not act to the disadvantage of architect’s professional honour and dignity . The interpretation of this conclusion is, protection of the architectural elements showing the architect’s intellectual creativity, not keeping the building’s original form . Otherwise, the owner shall be assumed to infringe architect’s authentic building and his intellectual efforts.

Article 16 of Law on Intellectual Property (FSEK) provides that; “Without the permission of the author (here, the architect) no abbreviations, additions or other changes can be made. Those who derivate, make available to the public, reproduce, publish, perform or distribute a work with the permission of the Law or author are entitled to make the changes which are required in the context of derivation, making available to the public, reproduction, publishing, performance or distribution techniques without any special permission from the author. Even if the author gives a written permission without any reserves, he is entitled to prohibit any kind of changes which corrupt his honour and dignity or spoil the work’s quality and characteristics. Waiving the prohibition right is null and void, even if a related agreement is concluded.” At the Article bis 6 of Berne Convention, it is provided that, the author shall keep his “right to declare that the work is his own and object to any kind of degradation, deconstruction or being subject to any kind of alteration or giving harms to the work in any other means” and this right shall be maintained till ”his death, at least to the termination of financial rights.”

To name a product as an art piece and to grant it legal protection, it should have the characteristics (properties) of its creator. Therefore, making changes at a work may sometimes mean giving harms to its quality as an artwork. Since the characteristics of the author can be observed from the work as a whole or one of its distinctive parts, making changes to such a distinctive part or section mostly means infringement of author’s rights and it should be indemnified.

In the context of this brief explanation, we can clarify the provisions of Art. 16 of Law on Intellectual Property Rights in more details as follows;

Since the work’s title, contents and form provides a totality, it is pretty evident that, the protection of this totality is to the advantage of the author. Therefore, any change to the work or “building” which affects the characteristics (or personality of the author) made without permission are assumed to be an infringement. As a consequence of the explanations stated above, right to object any change to be made at the work’s title or contents or form shall apply, when the honour and dignity of the author is affected or the quality and characteristics of the work is corrupted .

Pursuant to Article 16/2 of Law on Intellectual Property Rights, at the transfer of financial rights related to the work, the author can also delegate the right to make changes a the work in written form or as a provision of an agreement ot the client or building’s owner. In addition with these, those who take the rights of derivation, reproduction (that means, construction of the building, application of the projects to the building works), performance and distribution are entitled to make certain changes on the work, which are required by them to establish their rights.

However, if the change affects the author’s honour and dignity objectively or corrupt the work’s quality and characteristics, the author can object the change (even if he has given permission in advance) and prevent the work’s making available to the public. The author’s complete waiver of this right by an agreement is null and void, pursuant to Art. 16/3 of Law on Intellectual Property Rights .

With a judgment given in 2001, the Turkish Supreme Court has decided that “in case the artwork (architectural project) is changed unfairly and without permission of the author, if restitution is possible and removal of changes do not damage the public’s and owner’s interests vitally, then the work shall be restituted…”. Besides, at this judgment, it is stated that “in case any execution (that means, deconstruction of some sections) should be made due to the removal of the change, then, the procedure of the execution has to be clarified at the decree’s decision part and the restitution has to be decided clearly.

When the aesthethic characteristics of architectural works such as buildings is considered – leaving the monuments and others aside- we may conclude that, they should be appraised as works of fine arts, and instead of the legal protection for plans, projects and designs, which are assumed as scientific works, here the building itself is subject to legal protection. However, as for architectural works should have additional characteristics, other than their aesthethic properties, which is the necessity of being functional. Functionality, that is, ease of use and meeting the needs, is the most distinctive property of architectural works, compared to other artworks. Based on this specific property, the architect’s, that is, the author’s right of prohibition for changing his original work (Law on Intellectual Property Rights, Art. 16) has been considerably restricted, with regard to other works of fine arts. According to the judgments of the Supreme Court, changing an architectural work (building) which is designed to meet necessities of exploitation is subject to a looser regime than the regime applied for changes at other works of fine arts.

When performing the architectural work, preparing the plans and projects, the architect recognizes that the work is designed to meet certain necessities of exploitation and acts accordingly. As it is already mentioned above, other than the other pieces of art, the intended use of an architectural work is prior to the aesthethical considerations. So, if the intended use prevailing at the completition changes with the passing time, even becoming totally out of date, then the architect’s showing tolerance to the alterations of the building according to new necessities, even a complete deconstruction is an unavoidable requirement. Under these circumstances, the architect should be assumed to authorize the owner for future alterations, in the framework of his property right and building regulations, keeping his rights to protect his professional honour and dignity reserved. Such a conclusion has been accepted by the jurisprudence and the court practices, being codified by the contemporary copyright laws of the European countries .

From a Supreme Court judgment dated 2004, “in some circumstances, claiming infringement of rights by making changes at a project may mean ‘abuse of rights,’ in the framework of Art. 2 of Turkish Civil Code. Therefore, especially when the project owner makes the change at his own project or in case of compulsory changes due to technical difficulties, the Supreme Court dismisses the author’s claim for unauthorized changes on the work. ” As for the changes which are made without any permission or consent of the author and which cannot be assumed as required, if the change corrupts the characteristics of the architectural work or cause harms and damages to the honour and dignity of the author, the Turkish Supreme Court adjudicates the claim for non-pecuniary damages together with the claim for restitution in integrum. However, in Turkish legal system, there are some problems for the determination of non-pecuniary damages, arising from the Supreme Court’s approach. In the Supreme Court’s point of view, the amount acquired in return for non-pecuniary damages cannot lead to enrichment. Accordingly, the Supreme Court finds non-pecuniary compensation ruled over 5,000 – 10,000 YTL as exorbitant and forces the first instance courts to rule for lesser compensation amounts. It is so overwhelming to imagine that, you perform a certain work worth of one million USD, then your project and work is ruined after only five years of time and you have to settle for only 5,000.- YTL. Unfortunately, The Turkish Supreme Court leads to such unfair consequences with its judgments.
23. H. BÜHLMANN: Schweizerische Juristenzeitung 1991, Heft 8, s. 139; Troller: ZBJV 1945, s. 385; BGE 117/II s. 466-479 Naklen EREL, i,e., s. 128.
24. Mario M. PEDRAZZINI: Neuere Entwicklungen im Urheberrecht des Architekten, Droit de la Construction BR/DC/1-93, s. 6-7; TROLLER, i.e., s. 384 vd.; Lutz: s. 624, quoted by EREL,i.e., s.127
25. EREL, i.e., s. 128.
26. Besides, 12th Article of Berne Convention provides that, the authors have exclusive rights for giving permission to any changes to be made to their works.
27. Any kind of action which leads to changes on characteristics and totality of an artwork is sufficient for non-pecuniary claims (HGK. 11/2/1983, E. 1981/4-70 K. 1983/123, ÇEVİK: i.e. ,s. 22 note 9). (Supreme Court Decisions No: 4)
28. Supreme Court 15.HD. E. 1992/490, K. 1992/1984, T. 15.4.1992: “… the owner of the projects which are made and delivered to the defendant is the respondent bank. … at the project making specifications enclosed to the agreement, … it is stated that, after the projects are approved by the administration, they become property of the bank, so the bank can undertake any kind of alterations it finds necessary regarding the performance of the works without permission of the project’s author, but even if the author gives permission in advance without any reserve, he maintains to object any kind of changes which affect his honour and dignity or corrupt the work’s quality and characteristics. Considering the explicit provision of the Law; for the non-pecuniary damages claim of the plaintiff (…) since the project is transferred to an application project, (…) an expert report showing whether the work’s quality and characteristics have corrupted to an extent to arise non-pecuniary damage claims or not… is required.” (Y.K.D. Cilt 18, Sayı 10, Ekim 1992, s. 1585-1586) (Supreme Court Decisions No: 6)
29. 11. HD., 29.3.2001, E. 2001/143, K.2001/2548. (Supreme Court Decisions No: 40)
30. Martin J. LUTZ: Über das Urheberrecht des Architekten bei des Anderung von Bauwerken, Festschrift für M. PEDRAZZINI, Bern,1990, s. 617 vd.; Alois TROLLER: Das Urheberrecht an Werken der Architektur, ZBJV., Band 81, Heft 9, Sept. 1945 Naklen EREL, age., s. 125.
31. For Belgian Law, please see Revue de droit Intellectuel 1946, s. 22; Finnish Law (1961) § 13; Italian Law (1941) Art. 10/II; Japanese Law (1970) § 20; Dutch Law (1912) Art. 25/I,b; Norwegian Law (1961) § 12; Austrian Law § 83/III; Swedish Law (1960) § 13; Civil Law of USSR (1964) md. 492-494. Quoted by EREL, i.e., s.126.
32. 11. HD., 14.10.2004, E.2004/9774, K.2004/9844. (Supreme Court Decisions No: 55)
33. “The factory’s waste water purification facilities which are constructed by applying the claimant company’s plan and project are protected in the context of FSEK, as a work of the claimant company. However, at the action filed by the claim for corruption of the plaintiff’s work’s quality by construction of purification facilities to the newly built paint production unit (by someone else upon the defendant’s request) and giving false impression for the identity of author, by removing the name plate of the claimant company, it is decided that, the named acts are infringements to the author’s rights in the context of FSEK. Therefore it is decided to prevent the defendant’s infringement, restitution of the work, removal of the defendant’s name plate and indemnification for pecuniary damages. However, it is decided that, there isn’t any ground for non-pecuniary damage claims.” 11. HD., 1.7.1996, E. 1996/2451, K. 1996/4820. (Supreme Court Decisions No: 13)

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