Intellectual property rights are legal protections that safeguard the products of creative and intellectual labour. These rights encompass individuals' ownership over their innovative ideas, inventions, and creations. The primary objective is to promote creative endeavours and ensure the protection of the contributions made by creative individuals. This field is governed by Law No. 5846 on Intellectual and Artistic Works (“IAW”) and Law No. 6769 Industrial Property Code (“IPC”).
These rights can be categorized into two main groups: copyright and industrial property rights.
Intellectual Property Rights: Intellectual Property Rights are utilized to safeguard creative expressions such as literary works, music, artworks, written texts, films, and other forms of artistic creations. Intellectual Property Rights provides creators with the authority to utilize, duplicate, distribute, display, and produce derivative works based on their creations. However, Intellectual Property Intellectual Property Rights protection has a limited duration, after which the work enters the public domain. Intellectual Property, also known as author's right, is a legal concept that affords original creators’ exclusive control over their creations. Intellectual Property Rights holders possess the power to regulate the usage, reproduction, distribution, exhibition, and adaptation of their works by others.
Industrial Property Rights: Industrial Property Rights extend legal protections to innovations and creative works in commercial and industrial contexts. These rights safeguard the physical and commercial attributes of products and businesses. Industrial Property Rights are commonly categorized into trademark, geographical sign, design, patent and utility model. This concept has expanded to cover areas such as folklore, biodiversity, traditional knowledge, and even nanotechnology, which have recently become topics of international discourse. New regulations have been implemented at both national and international levels to address these issues. The framework for industrial property rights is established by the Industrial Property Law No. 6769.
Within intellectual property law, authors are granted two primary types of rights:
Financial (Economic) Rights
Financial Rights pertain to the rights authors derive from the concrete applications of their works. These rights are primarily designed to protect elements of commercial value. By exercising these rights, creators can safeguard the commercial worth of their products. Various types of Financial Rights include:
Right to Duplicate: The right to partially or wholly duplicate the original or adaptations of a work belongs exclusively to the owner of the work.
Right to Adapt: The right to make use of a work by way of adapting it rests exclusively with the owner of the work.
Right to Disseminate: The right to disseminate, lease, lend or sell or make a subject of trade in any way whatsoever a work and its copies obtained by duplication from the original or adaptation of it and to benefit from this way belongs only to the owner of the work.
Right to Perform: The right to make use of a work by means of performance such as reading, playing and displaying its original or adaptations directly or through devices used for sign, sound or image transfer at public places belongs exclusively to the owner of the work.
Right to Broadcast Through Radio: The right to make use of a work by promulgating its original or adaptations by means of radio or similar technical facilities used for sign, sound or image transmission; or promulgating the works promulgated by this way again through or without cable by receiving it live at another radio facility or performing it at public places by means of loudspeakers or similar technical facilities used for sign, sound or image transmission belongs exclusively to the owner of the work.
Moral Rights
Moral Rights constitute a set of rights within intellectual property law that focus on protecting the personal and non-economic interests of creators or authors. Unlike Economic Right, which primarily concern the commercial utilization of intellectual property, moral rights are concerned with preserving the creator's reputation, integrity, and emotional connection to their work. These rights are often intertwined with copyright law and are recognized in various legal systems globally.
Moral rights are founded on the notion that creative works are extensions of the creators themselves, reflecting their individuality, creativity, and personal perspective. Moral rights provide creators with a sense of ownership and control over how their work is presented and used, even after certain material rights have been transferred or licensed to others.
Five primary moral rights are typically acknowledged in intellectual property law:
The Authority to State the Name: The authority to decide on presenting to the public or publishing the work with the name or pseudonym of its owner or without a name rest exclusively with the owner of the work. This right ensures that the creator's works are correctly attributed. This entails associating the author's name or pseudonym with the work whenever it is used or published. Furthermore, the decision to publicly promote a work with or without the author's name lies exclusively with the owner of the work (IAW art. 15)
Prohibition of Changes on the Work: Abbreviations, additions or other changes cannot be made on the work or the name of the owner of the work without the permission of the owner of the work. This right safeguards the creator's work from alterations or distortions that could harm the creator's reputation or the original message of the work. Creators retain the right to object to modifications that could compromise the integrity of their work. The owner of the work also has the authority to prohibit modifications that would harm the work's reputation or quality, even if written permission has been granted to another party. Clauses in contracts that require the author to waive this right are considered null and void (IAW art. 16).
Authority to Present to the Public: The owner of the work exclusively determines the presentation or non-presentation and the time and way of promulgation of a work. Creators have the right to control when and how their work is first made public. This right allows creators to determine the timing of their work's publication. If the manner in which the work is presented or published has the potential to damage the owner's reputation, the owner has the right to prevent the public presentation or publication of both the original and modified versions of the work, even if written permission has been granted to another party. Clauses in contracts that require the author to waive this right are invalid (IAW art. 14).
The Rights of the Owner of the Work Against the Possessor and the Owner: The owner of the rights of duplication and adaptation can request from the possessor of the original to make use of the work as much as required for the exercise of such rights. However, the owner of the rights cannot request the handing over of the work to himself. The owner possesses the right to request temporary use of the original work from its possessor. If the work is unique and original, the owner may request the use of the work from the original owner and IAW for purposes such as incorporating it into their own works and exhibitions (IAW art. 17).
Inalienability Rule
While the transfer of an author's Moral Rights is not feasible, it is possible to transfer Financial Rights (along with the authority to utilize Moral Rights). When the owner of a work transfers a right, that right is transferred from the owner's possession to the transferee. The transferee then possesses all the rights linked to the transferred right. Conversely, when an author grants a license for a right, that right remains with the author. Consequently, although financial rights that enable economic benefits from a work can be transferred, moral rights—due to their intrinsic connection with the author—cannot be shared.
According to Article 48 of IAW, the owner of the work or his heirs can transfer the financial rights legally granted to them to others in a restricted or unrestricted manner in terms of duration, place and contents, with or without any return. Contracts for the transfer of rights related to works that have not been created or finalized are deemed invalid. However, in line with Article 50 of IAW, even if a work has not yet come into existence, a commitment can be made to transfer rights to a designated party once the work is created. Nonetheless, a separate transfer agreement must be executed after the work is created in order to transfer rights arising from ownership of the work.
Inheritance of Intellectual Rights
Article 63 of IWA states, " The financial rights are inherited. It is permissible to make mortal dispositions on financial rights." Moral rights are not inherited and are not part of the estate. However, this does not imply that they cease upon the owner's death; they are passed on to those authorized to exercise these rights. The financial rights associated with intellectual and artistic creations are considered legal assets and values of the deceased individual.
Individuals designated by the work's owner, the testator, the surviving spouse and children of the owner, descendants, parents, and siblings can exercise these rights on their behalf for a period of seventy years from the owner's death. If these individuals do not exercise their rights as dictated by law, a person who acquires a financial right from the owner or their successor can utilize these rights on their behalf, provided they have a valid reason.
At the conclusion of the protection term, a work enters the public domain, even if its creator has no successors. The proprietary rights over the work remain subject to state jurisdiction and control until the protection term ends. Those seeking to utilize the proprietary rights transferred to the state must engage in agreements for the transfer and assignment of such rights, as well as the authorization processes pertaining to the grant of usage rights, until the protection term expires.
Intellectual Property and Industrial Property
Both categories of rights are subject to specific durations. For example, the protection term for an artwork extends for the creator's lifetime plus seventy years, while trademarks are protected for ten years and patents for twenty years. Upon the expiration of these terms, both industrial rights and copyright enter the public domain, becoming freely accessible.
In both cases, the rights hold characteristics of ownership and can be the subject of legal transactions. This encompasses acquisition, sale, transfer, leasing through licensing, attachment, and collateralization, among other legal actions. (These principles relate to material rights in works and do not apply to moral rights. For example, the creator's name cannot be removed from moral rights.)
In both cases, unauthorized duplication and use (infringement) are treated as instances of unfair competition, leading to the application of the provisions outlined in the Turkish Commercial Code concerning unfair competition, alongside specific regulations stipulated by relevant statutes.
Intellectual Property vs. Industrial Property
No dedicated establishment exists for the registration of intellectual property rights. The initiation of protection for an artwork occurs through its public dissemination. Conversely, formal registration mechanisms have been established for industrial property rights, overseen by the Turkish Patent and Trademark Office headquartered in Ankara. While demonstrating ownership of an intellectual right is sufficient, registered rights within the sphere of industrial property benefit from enhanced provisions. Protection for unregistered industrial rights is considerably restricted.
Securing intellectual property protection for a crafted product requires embodiment with the proprietor's distinctiveness, encompassing artistic elegance and aesthetic merit. In contrast, commonplace creations failing to meet the threshold of being recognized as a 'work' remain outside the scope of intellectual property regulations. Conversely, industrial rights do not impose an equivalent requirement. To qualify for protection under industrial rights, the sole criterion is the necessity of being 'industrially utilizable.
The moral aspect of a work carries significant importance and is not subject to contractual waiver. Conversely, no comparable obligation exists in the realm of industrial rights except for the obligation to acknowledge the inventor's name.
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