Copyright Protection

The Legal Basis of Copyright in Turkey

In Turkey, copyright protection is primarily governed by Law No. 5846 on Intellectual and Artistic Works (Fikir ve Sanat Eserleri Kanunu - FSEK). The law is designed to protect the moral and economic rights of authors and creators, encourage the creation of intellectual works, and facilitate legal commerce under international compliance standards. Over the decades, Turkey has aligned its intellectual property framework with major international conventions, ensuring comprehensive protection for local and foreign right holders.

What Qualifies as a "Work" (Eser) under Turkish Law?

For an intellectual creation to be protected under FSEK, it must meet the legal definition of a "work" (eser). Under Article 1/B of FSEK, a work is defined as any intellectual or artistic creation that satisfies two primary statutory requirements:

1. The Subjective Element (Hususiyet): The creation must bear the unique characteristics or individuality of its author. It must represent a creative reflection of the author's personality, moving beyond standard technical processes or public domain expressions.
2. The Objective/Formal Element (Şekil): The work must be expressed in a tangible medium, allowing it to be perceived, read, heard, or visualized by others. Additionally, it must fall within one of the statutory categories defined by FSEK.

Statutory Categories of Works

Turkish copyright law divides protected works into four main categories, plus derivative works:

• Scientific and Literary Works (İlim ve Edebiyat Eserleri): Works expressed by language, writing, numbers, or symbols. Notably, this category includes **computer software programs (both source code and object code)** and their preparatory design documents.
• Musical Works (Musiki Eserleri): Any musical compositions, with or without lyrics.
• Works of Fine Art (Güzel Sanat Eserleri): Aesthetic creations like paintings, sculptures, drawings, architecture, and photography.
• Cinematographic Works (Sinema Eserleri): Audio-visual creations consisting of consecutive moving images, such as feature films, documentaries, and animations.
• Derivative and Compiled Works (İşlenme ve Derleme Eserler): Creations based on pre-existing works (translations, adaptations, collections) that still contain the unique individuality (hususiyet) of the adapter, provided the pre-existing author's rights are respected.

Copyright Ownership and Co-Ownership

Under Turkish law, the natural person who creates the work is the author (eser sahibi). Legal entities cannot be primary authors; they can only acquire exploitation rights through employment relationships or contracts. When multiple creators are involved, FSEK defines two forms of co-ownership:

• Joint Ownership of Indivisible Works (Ortak Eser Sahipliği): When contributions are combined in a way that makes it impossible to separate them (e.g., a collaborative book chapter). The co-owners form a partnership, and major exploitation decisions must be made collectively.
• Co-Ownership of Divisible Works (Birlikte Eser Sahipliği): When separate creations are merged for exploitation (e.g., lyricist and composer). Each creator retains individual copyright over their specific component and can exploit it separately, provided it does not harm the collective work.

Rights Granted to Copyright Holders

Copyright under FSEK grants the author a bundle of absolute, enforceable rights, divided into moral and economic rights.

1. Moral Rights (Manevi Yetkiler)

Moral rights are strictly tied to the author's personality. They cannot be transferred, assigned, or waived, even if the economic rights are sold. Under FSEK, moral rights include:

• Right to Disclose to the Public (Eseri Umuma Arz Yetkisi): Deciding whether, when, and how the work will be made public.
• Right to be Credited (Eser Sahibinin Adının Belirtilmesi Yetkisi): Demanding that the author's name be placed on the work, or deciding to publish anonymously or under a pseudonym.
• Right to Prohibit Modifications (Eserde Değişiklik Yapılmasını Yasaklama Yetkisi): Objecting to any abbreviations, additions, or other alterations that might prejudice the author's honor or reputation.
• Right of Access and Possession (Zilyet ve Malike Karşı Yetkiler): Accessing the original copy of the work for exhibitions or reproduction purposes under specific conditions.

2. Economic Rights (Mali Yetkiler)

Unlike moral rights, economic rights can be assigned, licensed, or inherited. They constitute the financial value of the copyright. Economic rights are strictly limited to the following statutory categories:

• Right of Adaptation (İşleme Yetkisi): The right to translate, adapt, or convert the work into a different medium (e.g., turning a novel into a movie script).
• Right of Reproduction (Çoğaltma Yetkisi): The right to make physical or digital copies of the work.
• Right of Distribution (Yayma Yetkisi): The right to rent, sell, import, or distribute copies of the work to the public.
• Right of Performance (Temsil Yetkisi): The right to perform the work in public (e.g., theater plays, concerts).
• Right of Communication to the Public (Umuma İletim Yetkisi): The right to broadcast the work via television, radio, satellite, internet, or other digital transmission media.

Term of Protection

Copyright protection is subject to strict statutory durations under Turkish law:

• Individual Authors: Protection lasts for the author's lifetime plus 70 years after their death (post mortem auctoris). If there are joint authors, the 70-year term begins after the death of the last surviving author.
• Legal Entities and Anonymous Works: Protection lasts for 70 years from the date the work was first made public.

Fair Use and Legal Limitations (Hukuka Uygunluk Sebepleri)

Copyright is not absolute; it is balanced against public interest. FSEK provides specific limitations and fair use exceptions, allowing third parties to use protected works without authorization under strict conditions:

• Public Order and State Security: Legislative, judicial, and executive bodies may copy and use works for official duties and proceedings.
• Public Interest: Live speeches and public lectures may be reproduced and reported by the press.
• Right of Citation (İktibas): third parties may cite brief excerpts from a published work for educational, critical, or scientific purposes, provided the source and author's name are clearly cited.
• Personal Use (Şahsen Kullanım): Individuals may reproduce a published work for personal, non-commercial use. However, this exception does **not** apply to computer software or architectural plans.

Civil Enforcement and Litigation Remedies

When a copyright is infringed in Turkey, right holders can seek civil remedies in Specialized Intellectual and Industrial Property Rights Courts (Fikri ve Sınai Haklar Hukuk Mahkemeleri). The primary civil lawsuits available under FSEK are:

1. Action for Determination of Ownership (Eser Sahipliğinin Tespiti Davası): Filed to resolve disputes regarding who created the work or who holds the copyright.
2. Action for Cessation of Infringement (Tecavüzün Men'i Davası): A preventive lawsuit filed when there is an imminent threat of copyright infringement, or to prevent ongoing recurring violations.
3. Action for Elimination of Infringement (Tecavüzün Ref'i Davası): Filed to remove the physical or digital consequences of an ongoing infringement (e.g., removing pirated content online, destroying unauthorized physical copies).

   The Triple Royalty Rule (FSEK Art. 68): Under this provision, if a work is exploited without permission, the copyright owner can demand compensation up to three times the standard licensing fee that would have been agreed upon in a normal contractual transaction.

4. Claims for Damages (Tazminat Davaları): Copyright owners can file civil claims for material damages (actual loss and loss of profits) and moral damages (for emotional distress or damage to reputation).
5. Action for Return of Profits (Kazancın İade Davası): Filed to claim any unjust gains or profits the infringer made through the unauthorized exploitation of the work.