According to the articles 70/2 and 80/2, paragraph 9 of the Law of the Intellectual Property Rights, the owners of the intellectual or artistic work or the owners of the related rights or the assignees ( licensees) whose economic rights such as processing, copyright, distribution, representation, publication rights are violated can claim for the material compensation which is based on the ground of tortious act clauses under the condition that there is negligence of the violator in the action .
According to the article 70 of the Law of the Intellectual Property Rights, in order to demand for material compensation, there must also necessarily be material damage occured in the action besides the condition of negligence (culpa). With that suit, it is aimed to ensure the payment of a compensation which will be the difference between the actual position and the ex-ante position of the property if that damage case did not happen.
The damage can appear in forms of actual damage or loss of profit. While actual damage states a decrease in the value of the property, -in other words assets decrease or liability increase-; loss of profit implies the damage resulted in case of the increase in the value of property is restricted. The damages in intellectual and artistic works, in general, happen to be in the form of loss of profit.
To the contrary to our explanations, because it is hard to assess damage in the suits for damages, the judge –if necessary- shall appraise the damage in consideration with the article 42/2 of the Code of Obligations which states to consider “the habitual happening of the event and the precautions taken by the injured party” in the determination of the damage .
The owner of the intellectual or artistic work can claim for one of the choices herein in this suit; the destruction of the unpermitted copies of the literary or artistic work, or for compensation as of threefold values of the published copies, or for the transfer of the published copies to himself. Differently from the lawsuit for material compensation implied in the article 70 of the Law of the Intellectual Property Rights, the condition of “negligence of the defendant” is not required in the lawsuits for material compensation implied in the article 68 of the Law.
The amendment in 2008 to the article 68 of the Law of the Intellectual Property Rights regulates those below:
“ The owner of the rights from whom permissions are not taken can claim for three times of the amount that could be asked in case of a contract is concluded or the current value that will be set by this Law at most, from those who processed, copied, published the copies, represented or published through means of any kinds of signals, sound or images of an artistic work, exercise, phonogram or programs.
Unless the unpermitted copies are put on the market, the owner of the right can claim for the destruction of the copies, the films, the castings and suchlike means which serve for copying or; can claim for them to be submitted to himself in return of a reasonable price which does not exceed the cost of production or; can claim for three times of the amount which could be asked in the case of a contract is concluded. Those claims do not vanish the legal liability of the one who copied without permission.
In the event of the copies are put on the market, the owner of the right can exercise one of the privileges mentioned in the second paragraph for the copies which are on the hands of viaolator.
In order for the second and third paragraphs to be implemented by those who have rights on the intellectual or artistic works –other than the owner of the intellectual or artistic work-, the written permission to copy in accordance with the article 52 of this Law is required.
In the event of one of the owners of the right claimed in accordance with the paragraphs 2 and 3, the provisions related to seizure of the Code of Criminal Procedure cannot be implemented in the purposes other than obtaining evidents.
The one who claimed for the compensation can contest all his rights and powers which would originated in the event that he concluded a contract.”
It is important to determine the legal qualification of the demand for “threefold of the amount in the event that there is a contract concluded” under the paragraphs 1 and 2 of the article 68 of the Law of Intellectual Property Rights. According to the Supreme Court of Appeal, it is not possible to define the amount which can be claimed under the article 68 of the Law of Intellectual Property Rights as a “legal punishment” . In the decisions of the Supreme Court of Appeal, calculation of “the material compensation in accordance with the article 68 of the Law of the Intellectual Property Rights” is mentioned . Hence, it is possible to come to the conclusion that the Supreme Court of Appeal defines the amount or the damage which could be demanded under the article 68 of the Law of Intellectual Property Rights as “compensation” .
According to the Supreme Court of Appeal; in pursuance of the relation of fictious contract stated in the article 68/2 of the Law of the Intellectual Property Rights, the amount of money which should be given to the owner of the intellectual or artistic works by the one who will copy the intellectual or artistic work in accordance with the agreement which would be concluded under normal conditions, should be calculated considering the factors; that affect the value of the intellectual or artistic work in respect of the intellectual or artistic work and the creator of it and; the number of the copies at first and then the threefold of it should be calculated, as well.
According to the Supreme Court of Appeal; if the threefold amount is compensated, then it is accepted that a contract is concluded between the defendant and claimant and in this regard, the claimant may not claim anymore for an action negatoria in rem.
In accordance with the decisions of the Supreme Court of Appeal; the compensation stated in the article 68 of the Law of Intellectual Property Rights cannot be claimed if ever there was an agreement relation between parties before and the rights of the owner of the intellectual or artistic work were violated while this agreement was in effect.
In this suit, the defendant parties are the owner of the intellectual or artistic works or the neighbouring rights’ owner whose economic rights are violated.
The owner of the intellectual or artistic works may claim for those suits in cases of violation of the economic rights of processing, copyright, representation and publication.
The artistic performers, for their performings, may sue those lawsuits in the event of their performings are detected, copied, distributed and published without their permission.
Phonogram manufacturers may sue lawsuits for material compensation in the events of their artistic works and exercises, the first sound recordings (phonograms) are copied, distributed, represented or published without taking permission of themselves.
It is regulated under the article 80 of the Law of Intellectual Property Rights that the Radio and TV Broadcasters may sue lawsuits for material compensation in the event of their works, the broadcast recordings (broadcastings) are copied, distributed, represented or published without their permission. In line with this regulation, the broadcasters may bring suits for material compensation in the event of their broadcastings are published without their permission in pursuant of general provisions and the article 70 of the Law of the Intellectual Property Rights. However, in the amendment of the article 68 of the Law of the Intellectual Property Rights in 2008, the radio and tv broadcasters are forgotten while lining the ones who may claim for threefold of the contract value or the current value as compensation in the provision. Despite of that, radio and tv broadcasters may still ask for threefold of the contract value or the current value as compensation for “the programs bearing the qualification of “intellectual or artistic works” in the context of the article 68 of the Law of the Intellectual Property Rights.
The movie-makers may also sue lawsuits for material compensation in the events of the movies are copied, distributed, represented or published without their permission.
The joint owners of the intellectual or artistic works ( Joint ownership of the intellectual or artistic works) can also sue a lawsuit by proxy for the other joint owners for the unity of the work, besides that they can sue a lawsuit for the work’s parts which are created by themselves . In the event of collective ownership, an owner of the work can sue a lawsuit for the unity of the work in accordance with the article 10/2 of the Law of the Intellectual Property Rights. In respect to Suit for Damages, while the owner of the work can sue singly for the benefit of the unity, he cannot singly act for the compensation’s amount .
In those suits, the claimant is the one whose rights are violated. Besides the owner of the intellectual or artistic works, the owner of the neighbouring rights or the assignees may also sue this lawsuit. The lawsuit may also be sued by the inheritors.
Because those suits are based on the ground of tortious act, the lapse of time for those suits is one year from the time of discovery of the damage and the perpetrator and in any case ten years from the time of the occurence of the action.
The authorized court is the court of place of domicile of the defendant party according to the Court Procedures Law.
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1. The Article 70/2 of the Law of Intellectual Property Rights: “The injured party whose economic rights were violated can claim for the compensation within the frame of the provisions of the “tortious act” if ever there is the negligence of the violator.”
2. YARSUVAT, age., pg.22; YAVUZ, age., pg.552. By transfer SULUK/ORHAN, age., pg.801.
3. KOCAYUSUFPAŞAOĞLU/HATEMİ/SEROZAN/ARPACI,HATEMİ, pg. 48-50. By transfer ARIDEMİR, age., pg. 200.
4. AYİTER, age., pg. 262; KAYPAKOĞLU, age., pg. 163. By transfer ARIDEMİR age., pg. 200.
5. ARIDEMİR age., pg. 200.
6. The Supreme Court of Appeals of Turkey, 4. HD., 21.03.1957T., 6994E., 1535K. By Transfer ARIDEMİR, age., pg. 195.
7. 11. HD., 15.02.2000 T., 199/7464 E., 2000/1106 K.; 11. HD., 25.01.2000 T., 1999/6935 E., 2000/325 K. (The Decisions have not been published); 11. HD., 06.03.2000 T. 1999/9978 E., 2000/1893 K. (YKD., C.29, S.2. February 2002, pg. 183-184). By transfer ARIDEMİR, age., pg. 195.
8. ARIDEMİR age., pg. 195.
9. EREL, age., pg. 293.
10. ARSLANLI, age., pg. 70; EREL, age., pg. 62; ÖZTRAK, age., s. 46; BELEN, agm., pg. 98.
