• NSN Law Bulletin

Papers on Copyright Law in Turkey - 2

In which conditions the scientific works shall be protected under the copyright law?

As it is known, in order for an idea and artistic work to be considered as a work within the scope of the Law on Intellectual and Artistic Works No. 5846 (“the Law”), it must be preserved within one of the types of works listed in the Law and must bear the characteristic of its author. In this article, we are aiming to examine the conditions of the scientific works to be considered as the work within the scope of the Law.

Although there is no clear consensus on what is preserved in scientific works, there is no difference of opinion regarding the preservation of points such as interpretation, expression style, and way of explaining thoughts in scientific works. The point to be discussed here is whether the opinions and theories in scientific works are protected under the Law. In Turkish doctrine, it is claimed that the opinions, theories or formulas are not protected within the scope of the Law, otherwise scientific process will be damaged. In line with this view, it has been stipulated both in the Agreement on Trade Related Intellectual Property Rights (TRIPS) and the World Intellectual Property Organization (WIPO) which Turkey is a party of, that the protection for scientific works "does not include ideas, procedures, business methods or mathematical concepts, but only the way of expressing thought".

According to the decision of the General Assembly of the Supreme Court of Appeals (“Court”) numbered 2017/7, dated 20.02.2020 (“Decision”), it was pointed out critical evaluations on the works to be protected within the scope of the Law as scientific works. In the concrete case, the Court decided whether the laboratory results used in the plaintiff’s doctoral thesis and in the subsequent papers related to this study have the quality of work within the scope of the Law. In its evaluation, the court stated that the category referred to as scientific and literary works in Article 2 of the Law included works, expressed in any way in any language and put forward with any means of expression (words, texts, figures, figures, lines or symbols). In this regard, the Court declared that works belonging to all branches of science and art (sports, music, fine arts, science, mathematics, medicine, etc.) are counted as a scientific and literary work and they would be protected within the scope of Article 2 of the Law, on the condition that they are put forward with the above mentioned expressive tools and that scientific works meet the requirement of characteristics.

In the subject Decision, the Court also stated that the characteristic requirement in scientific works is the form of expression rather than the content in terms of the characteristic, which is another condition that the scientific work must fulfil in order to be considered as a work under the Law. However, in the evaluation of the Court, it was stated that, as a rule, there is no property right on the findings of the science, when the previous scientific studies in the same field and long-term experiments and observations were used to a great extent while creating the content of the scientific works. For this reason, the concrete case was taken into consideration as a result of looking at the form of the study rather than the content while determining the characteristics of the scientific works.

As analyzed in the Decision, it is argued that the characteristics of the scientific work is shaped especially by the knowledge of the author and the scientific methods that have been used during the study. Therefore, it has been stated that both knowledge/opinion/idea and the way of expressing should be preserved in the scientific works. The scientific work may not only consist of a text, but also include parts such as figures, graphs, statistics tables and photographs. For this reason, it has been addressed both in doctrine and judicial decisions whether these parts, which are included in the content of the scientific works, can be considered as a scientific work separately under the Law. In parallel with this view, the Court also stated in its justification, the elements such as pictures, figures, tables, graphics and schemes in the scientific work are considered an integral part of the work and are protected within the scope of the work, provided that they bear the characteristics of its author.

It is crucial to note that a shape that everyone can draw cannot be preserved as an integral part of the scientific work. Such as, a chart showing the monthly inflation rate will be preserved as long as it bears the characteristic of its author. In line with this view, even the Court accepted in the Decision that the doctoral dissertation study subject to the case was a scientific work under the Law, the tables created from the data obtained as a result of the laboratory analyses included in the thesis decided to be evaluated separately when determining whether the tables constitutes a separate scientific work within the scope of the Law or not.

Apart from the content of the works, the branch of science also considered as an important factor in determining the characteristics of the scientific works. Because the determination of the characteristic in certain disciplines may also be subject to different factors. For example, when considering an article, the characteristic here may vary according to different branches of science. Such as, in an article in the area of law, the characteristic is sought in the discussion of the chosen topic and personal opinions belonging to the author. Or, since the results and outputs are important in scientific works in the field of medicine, the evaluation for characteristic should be done at these points. Accordingly, whereas in a study revealing the effect of a drug, it should be accepted that the characteristic aspect will be determined as a result of the interpretation of this effect.

As can be seen, when it comes to scientific works, it is not definite how and to what extent scientific works will be protected. Although there is no generally accepted definition for scientific works to be accepted as work within the scope of the Law, the importance of the characteristic factor and their inclusion in one of the categories of work under the Law is seen when determining whether a work is a scientific work to be protected under the Law. For this reason, even if some pre-assumptions have been made in determining the work qualities of such scientific studies in both doctrine and practice, the scope of protection of these scientific works may vary according to concrete events.

Author: Bilge Derinbay, Hande Ülker Pehlivan