In the second article of our series, "Software Article Series: 2- Elements of Computer Programs Protected by Copyright", we have examined which computer programs and other elements related to computer programs are eligible for copyright protection. In this article of our series, we will examine the scope of copyright protection in general and describe the different types of rights in this scope, namely the moral rights, economic rights, and other rights of the author.
“Copyright” as an Intellectual Property Right
First of all, for an intellectual and artistic product to be accepted as a work by the Intellectual and Artistic Works Code numbered 5846 (“Copyright Code”) and benefit from copyright protection, the work must meet the following conditions:
Being a product of intellectual effort: The work must be created as the product of a mental effort by the author.
Bearing the author’s individuality: The requirement of the author’s individuality ensures that the works can be distinguished from other works. This condition has been tried to be explained by concepts such as “originality” by the Court of Cassation.[1]
Being Formed: It must be out of the intellectual world of the author and must be in a quality that can be perceived objectively by third parties.
Falling into a type of work: The types of works are listed exhaustively in the Copyright Code. Accordingly, for an intellectual and artistic product to be accepted as a work, it must fall into one of the types of "science and literature works", "musical works", "fine artworks" and "cinema works".
By Article 2/1 of the Copyright Code, computer programs are listed under the group of "science and literature works". In this context, computer programs that also meet the other conditions listed above will be able to benefit from copyright protection. Again, some other elements created with computer programs may be considered works and protected by copyright if they meet the above conditions.
Rights of the Author
According to Article 8 of the Copyright Code, the author of a work is the natural person who created that work. Upon the creation of the work, the author of the work acquires financial and moral rights. There is no registration requirement to obtain the respective rights.
As a rule, legal entities, such as companies, cannot be authors. Legal entities may directly own these rights or acquire only the right to use them by virtue of their relations with or contracts concluded with natural persons who are authors, such as employees. The situation between the employer and the employee, the company and its organs (shareholders, managers, members of the board of directors), works created on commission, and the situation of authorship and therefore the status of rights in cases where the work is created by the joint work of more than one person will be examined in our subsequent articles.
In the Code, the rights of the author are divided into two main groups: moral rights (Art. 14-17) and economic rights (Art. 20-25). The Copyright Code also grants certain other rights to the author, which are excluded from this grouping and are listed below under the heading of other rights.
Moral Rights of the Author
The author may assert her/his moral rights arising from the work against anyone. Since moral rights are closely linked to the personality of the author, these rights cannot be transferred or waived while the author is alive or after her/his death.
The types of moral rights regulated in Articles 14 and 17 of the Copyright Code are as follows:
Right to Disclose the Work to the Public: The author's work is deemed to be made available to the public and publicized as soon as it leaves her/his personal circle. Article 14 of the Copyright Code regulates that the right to determine whether a work will be made available to the public, the time and the manner of its publication belongs exclusively to the author. Further, the if the author has provided a written consent to a third party for the publication of the work, she/he may then prevent the publication of both the original and the adapted form of the work, where the manner of the respective publication may damage the honor and reputation of the author.[2] This right, which is strictly bound to the author, cannot be waived by contract.
Right to Be Identified: Since the work reflects the personal and intellectual interests of the author, it is of great importance to indicate the name of the author. For this reason, Art. 15 of the Copyright Code regulates that the author has the right to decide whether or not her/his name (or pseudonym) shall be mentioned in the work made available to the public. Unless otherwise agreed, the author's name must be indicated in the work presented.
Right to Prevent Changes in the Work: Article 16 of the Copyright Code regulates that abbreviations, additions and other similar changes cannot be made in the work or in the name of the author without the author's permission. A person who adapts or reproduces a work with the author's permission may have to make some changes to the work in mandatory cases. In these cases, the author may only prohibit changes that damage the honor and reputation of the author or that impair the nature and characteristics of the work.
Rights Against the Owner and Possessor of the Work: These rights are regulated in Article 17 of the Copyright Code. Accordingly, the author has the right to access the original work and, where necessary, may request the work from the third party who possesses the original work with the aim of benefiting from the work for a temporary period. The owner of the original may dispose of the work in accordance with the terms of the contract concluded with the author, but may not damage or destroy the work. The author has the authority to prevent damage to the work. Another right that the author has against the owner and possessor is the right to exhibit the work. In the event that the work is unique and original, the author may request the owner to return the work in order to use it in works and exhibitions covering all of her/his periods, by fulfilling the conditions of protection. As can be seen, the author who created the work and the owner or holder of the object on which the work takes shape may be different persons. This is more easily understood in the case of works of fine art, such as paintings.
Economic Rights of the Author:
According to Article 20 of the Copyright Code, the right to benefit from a work that has not yet been made public, in whatever form and style, belongs exclusively to the author. Similarly, the right to benefit from a work that has become public belongs exclusively to the author. However, these exclusive rights on the work that has become public are limited in number with the principle of a limited number (numerus clausus).
It may be preferable to dispose of some of the economic rights and not to dispose of others.
The economic rights of the author are regulated in Articles 21-25 of the Copyright Code as follows:
Right of Adaption: Intellectual and artistic works that are created by making use of a work and that are not independent of that work from which they are made use are works of adaptation. The right of adaptation means making changes to the work in such a way that the work still bears the characteristics of the author. The person who adapts the work may use the adapted work only to the extent permitted by the author. In other words, it is necessary to obtain permission from the author for the new adaptation of the work.[3] The person to whom the adaptation right is granted has the necessary economic rights to make economic use of the adaptation, provided that she/he adheres to the right granted to him.[4]
Right of Reproduction: The right of reproduction meant the copying of a work in any form. According to Article 22 of the Copyright Code, making a second copy of the original or recording it on any medium (known or to be developed in the future) capable of transmitting and reproducing signs, sounds, and images, and the implementation of all kinds of sound and music recordings and plans, projects and sketches of architectural works are in the scope of the right of reproduction.
Right of Distribution: The right to distribute the copyright is regulated in Article 23 of the Copyright Code. Accordingly, the rights to rent, lend, sell, or distribute the original or reproduced copies of a work in any way belong exclusively to the author.
Right of Performance: Pursuant to Article 24 of the Copyright Code, the author shall have the right to make use of the work by performing in any way, such as directly (direct performance) or by reading, playing, playing, or showing it in public places by means of instruments for the transmission of signs, sounds or pictures/images. Again, the transfer of the performance by any technical means from the place where the performance takes place to another place in order to be presented to the public is also within the scope of the author's right of performance Cases other than direct performance are considered indirect performance and this situation is important when it comes to the transfer of rights, as will be examined in our subsequent articles.
Right of Communication To Public: In accordance with Article 25 of the Copyright Code, the right of communication to the public is the right to broadcast the original work or its reproduced copies through wired or wireless broadcasting organizations such as radio-television, satellite, and cable, or by means of instruments for the transmission of signs, sounds or images, including digital transmission. The re-broadcasting of the respective already broadcasted work by obtaining from the broadcasting organizations is also included in the scope of this exclusive right of the author.
Other Rights of the Author:
Share and Tracking Right: Pursuant to Article 45 of the Copyright Code, except for architectural works, in each sale of the originals (copies of these originals that are deemed to be original) of the fine artworks, an appropriate share of the difference in price must be paid to the author, in case of a clear disproportion between the current sale price and the previous sale price.
Right of Renunciation: Pursuant to Article 60 of the Copyright Code, the author or heirs of the work can waive the economic rights granted to them by law, by issuing an official deed. By publishing the document in the Official Gazette, the renunciation becomes effective.
Right of Rescission: The right of withdrawal has both financial and moral character. Pursuant to Article 58 of the Copyright Code, the author may withdraw from the contract if the person who has acquired an economic right or a license fails to make proper use of his rights within the agreed period of time, or if no period of time has been determined, within an appropriate period of time, and if the interests of the author are substantially violated because of this, the author may withdraw from the contract. In order for the author to exercise his right of withdrawal, the author is obliged to give the other party an appropriate period of time through a notary public. It is not possible to waive the right of withdrawal in advance, and the condition of prohibition of the use of this right for more than two years is deemed null and void.
Other Articles of the Software and IP Series:
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[1] 11th Civil Chamber of the Court of Cassation, decision numbered 3250 E. 4072 K. dated 11 May 2000. [2] Cahit Suluk, Rauf Karasu, Temel Nal, Fikri Mülkiyet Hukuku, Ankara, 2020, p.83. [3] Suluk, Karasu, Nal, p.88 [4] Şener Dalyan, Bilgisayar Programlarının Fikri Hukukta Korunması, Ankara University Graduate School of Social Sciences Department of Private Law, PhD Thesis, Ankara, 2008, p.154 (https://dspace.ankara.edu.tr/xmlui/bitstream/handle/20.500.12575/37468/228066.pdf?sequence=1 last accessed on 19.07.2023)