• NSN Law Bulletin

Papers on Copyright Law in Turkey - 1

What are the Requirements for the Work to be protected under the copyright law in Turkey?

In Turkish Law some criteria have been introduced in order to deem the material as a work in the sense of the Law No. 5846 on Intellectual and Artistic Works (“the Law”). In order to talk about a work that will be preserved within the scope of the Law, the work in question must meet some criteria. These criteria are determined in the Law as follows; (i) the work must be an expression of creative ideas, (ii) the work must be recorded in materially, (iii) the work should carry its author’s characteristics and (iv) the work must fall under one of the category of the types of work stipulated in the Law. The work can only be preserved under the Law, once it meets all of these criteria that have been set.

Bearing the Characteristics of its Author

The work must reflect the individual characteristic of its author in order to be protected under the copyright. The concept of characteristic is used to express an effort and intellectual effort beyond the simple craft that cannot be revealed by everyone. For this reason, the concept of characteristic is sought as a subjective condition for the existence of a work within the framework of the Turkish doctrine. In some works, the characteristics of its author are more noticeable because the work will allow this due to its nature, while some works may not be able to provide this. In this sense, in order for a work to reflect the characteristics of its author, the work must also provide opportunity and movement space to do so. There are points that need to be taken into consideration when searching for the presence of a characteristic in the work as the following;

  • the effort reflected in the intellectual or artistic work should be at a certain level,

  • the work should not be ordinary,

  • the work must be above what the craftsman puts out and above mediocre.

Characteristic does not mean that the work is completely original or unique. On the contrary, there is a need for a free shaping area in which individual thought is formed and can be expressed. It is obvious that there are no exact criteria for determining the existence of a feature within the framework of the reasons explained. It is very difficult to define the characteristic as a concept and to determine its limits. As such, the concept of characteristic has not been clearly defined and its boundaries have not been determined in its application. However, when both doctrine and judicial decisions are being considered, it is clear that the existence of a creative activity should be accepted while determining the characteristic. Besides, the person who will determine the existence of the characteristics is an expert according to the established decisions of the Court of Cassation.

Certain Types of Works Specified in the Law

With the law numbered 5846, the types of works are categorized in “numerus clausus” as follows;

  • Scientific and literary works (Article 2)

  • Musical works (Article 3)

  • Works of fine arts (Article 4)

  • Cinematographic works (Article 5)

  • Adaptations and collections (Article 6)

It should be noted that although these categories are “numerus clausus”, each of them comprises many sub-categories and these sub-categories can be increased considering the nature of the creative work. This situation has been proved by the Law in Article 2-5 with the words "works expressed in language and writing in any way and computer programmers expressed in any form", "model and the like", "all kinds of typifications" and "all kinds of architectural and urban design projects".

According to the “numerus clausus” principle, a new intermediate or main species cannot be established, except for the species shown in the Law, for instance, there is a deep argument whether the smell shall be deemed as a work or not. In any case, it is argued in the Turkish doctrine that it is not appropriate to make the scope of protection of the law exclusive to certain categories and limited number of works. As the justification for the argument, it is stated that such a restriction will always lead to errors in terms of a branch of law that is not static, always introduces new areas of use and intellectual products in the face of developing technology.

Although the works are excluded from the scope of protection by counting certain types of works within the scope of the Law, the absence of a limited number principle in sub-categories does not at least make the scope narrower. However, despite that there are certain conditions in order to be considered a work within the scope of the Law, there are also some aspects that cannot be considered for being treated as a work. For example, when evaluating whether a work is a work within the scope of the Law, the effort and expense spent, the publication of the work, to whom it is addressed, whether it has a purpose, whether it is new, its quantity and quality are not taken into consideration. For this reason, it cannot be said that the regulation in the Law strictly restricts the scope of being considered as a work.

Author: Bilge Derinbay, Hande Ülker