1. INTELLECTUAL PROPERTY RIGHTS AND TYPES OF IT
Intellectual property rights are used as an umbrella concept covering copyright and industrial property rights. The protection on the works of the authors is provided by the Law on Intellectual and Artistic Works under the name of copyright. Protection of industrial property rights, which constitute the other part of intellectual property rights, is provided by the Industrial Property Law.
Industrial property rights include patents, utility models, brands, geographical indications, designs, new plant varieties, integrated circuit topographies, trade names, databases, etc. such as intellectual property rights. In this respect, intellectual property rights (intellectual property rights) are divided into two as copyrights or intellectual and artistic works and industrial property rights.
In the Law No. 5846 on Intellectual and Artistic Works, the work; the authors; the rights of the authors; protection periods; exceptions and restrictions on the rights of authors; professional associations; transfer of rights agreements; related rights; violations and sanctions. The types of works benefiting from copyright protection in on Intellectual and Artistic Works are scientific and literary works (art.2), musical works (art.3), fine art works (art.4) and cinema works (art.5). processing and compilation consists of works (art.6).
2. COPYRIGHT AND FEATURES OF COPYRIGHT
Works protected under the Law on Intellectual and Artistic Works benefit from a natural protection starting from the moment the work is created. The work does not need to be registered or approved. However, it is possible to take some actions in order to protect the rights on the work and to provide ease of proof, especially in determining the right holders. These are “Optional Registration” and “Notarized Certificate of Entitlement”.
As it is known, there is no need for registration for copyright to arise. Rights on intellectual and artistic works arise with the production of the work. Copyrights have an abstract nature. They are intangible goods created by human thought, protected by copyright. Copyrights have a separate and independent existence and legal value from the material in which they are embodied. The principle of territoriality applies to copyrights. In which country the protection is requested, the protection conditions are determined according to the legislation of that country. It has absolute rights. Copyrights can be claimed against anyone. However, various restrictions have been imposed on this absolute right for reasons such as the protection of the public interest. Limitations on absolute right: It consists of limitations brought for reasons such as public order, general morality, public interest, and exceptions brought for the benefit of private interest (personal use, etc.).
3. OPTIONAL REGISTRATION / NOTARY-APPROVED CERTIFICATE OF RIGHT OWNERSHIP
The Optional Registration-Registration process, which is carried out on the works, is a declaration-based process that is not obligatory to determine who created the work, does not cause loss of rights if not done, and does not give any rights to the person. The document, which is given as a result of the Optional Registration process based on the declaration, provides convenience in proving who is the owner of the work, that is, the person or persons who created the work. It is not an authoritative document.
An application for optional registration can be made in person or by mail. Applications are made to the General Directorate of Copyrights.
Document of Right Ownership Approved by Notary Public, on the other hand, is the process of issuing or approving the notary public's statement that the person has created the work in question and that all rights on this work belong to him/her.
4. METHODS OF LEGAL PROTECTION IN VIOLATION OF INTELLECTUAL RIGHTS
Violation of intellectual rights means the unlawful use of rights arising from copyright. In case of violation of intellectual rights, provisions regarding tortious acts will be applied. In this case, the statute of limitations regarding tortious acts will come to the fore. In short, it is a one-year, ten-year and penalty statute of limitations.
The subject of intellectual rights is the rights arising from the ownership of the work. The Law on Intellectual and Artistic Works has separated the rights arising from the ownership of works with a different understanding from the general distinction of rights. This distinction is completely different from the distinction of rights in other branches of law. In this sense, the law envisaged two types of rights arising from the ownership of the work. These are called moral and financial rights. Moral rights are the moral ties of the author with the work, and the rights that are not of economic or financial nature. It is accepted that these are related to the personality of the owner of the work and that they are a fundamental right that cannot be separated from the work because it is a product of the person's creative thought. These rights include the right to make the work public (authority to disclose the work to the public or to the public, article 14), the right to specify the name (article 15), the power to forbid (prevent) changes in the work (article 16), the rights of the author against the possession and the owner (the work). owner's right to access the work) (article 17).
Financial rights refer to the financial and economic ties of the author with the work. Since they provide the owner of the work with commercial exploitation opportunities, they provide the authority to demand monetary compensation from those who use these rights. These include the right to process (article 21), the right to reproduce (article 22), the right to disseminate (article 23), the right to represent (article 24), the right to transmit to the public by means of signs, sound and/or image transmission (article 25), fine art works the right to request a share from the sales price (article 45).
When the two types of rights are compared, it can be determined that there are the following differences between them: Moral rights express the moral ties of the author with his work. Therefore, the authority to use moral rights belongs to the author. Financial rights, on the other hand, express the economic ties of the author with his work. For this reason, it is possible for them to be the subject of transfer and assignment in return for a consideration.
Moral rights are not an asset value included in the estate in the event of the death of the author. For this reason, they cannot be taken into account in the monetary evaluation of the estate and cannot be the subject of division among the heirs. While protection periods are foreseen for financial rights, no protection period is foreseen for moral rights. Article 26 of FSEK states that "financial rights granted to the author are subject to change over time". After the protection periods stipulated in the law have passed, everyone can benefit from the financial rights of the owner of the work. No such protection period is foreseen for moral rights. Accordingly, after the work becomes public, no matter how long it takes, the moral rights of the owner of the work continue.
The law has accepted that contracts and dispositions related to copyright can only be in question for financial rights. Articles 48 and 49 of the Law on Acquisition (Acquisition) of Rights Arising from Ownership of Works have brought a regulation that the acquisition is limited to financial rights. Apart from this, Article 52 regarding the form of contracts and dispositions stipulated that this could only be for financial rights. According to this regulation, moral rights arising from the ownership of the work cannot be the subject of contract and disposition.
In order for the right arising from copyright to benefit from legal protection, this right must have been violated unlawfully. In all cases where the consent of the author is not available, it cannot be said that the right has been violated. Because FSEK has foreseen some legal reasons for the use of the rights arising from the ownership of the work. These are the protection periods and the limitations imposed on the financial rights arising from the ownership of works in Articles 30-40 of the Law. In the presence of one of these, the use of the financial right from the owner of the work will not be considered illegal and therefore a violation.
On the other hand, the use of copyright without the consent of the owner constitutes an infringement of the right of another. Here, there is a wrongful act within the meaning of article 41 of the UK. However, since FSEK has specially arranged the legal remedies to be applied against such acts, these special provisions will be applied first.
Violation of copyrights may result in civil or criminal action. Processing, representing, duplicating, changing, distributing, transmitting and publishing a work, performance, phonogram or production by means of any kind of sign, sound or image transmission without the written consent of the right holders, Selling the works that have been processed or reproduced illegally disseminating, purchasing, importing or exporting for commercial purposes, holding or storing for purposes other than personal use, Naming someone else's work as one's own work, Citing a work without citing the source, by selling, renting or lending or otherwise In case of making a public statement about the content of a work that has not been made public, without the permission of the right holders, a criminal case may be filed. After the right owner's application to the prosecutor's office, the Public Prosecutor takes the necessary actions regarding the seizure protection measure in accordance with the provisions of the Criminal Procedure Law No. 5271 regarding the crime subject matter. The public prosecutor may also decide to suspend the activity, limited to the reproduction of works that are alleged to have been unlawfully reproduced, if he deems it necessary.
If there is a danger of infringing on moral and financial rights, there will be civil lawsuits. These are: The lawsuit regulated in Article 68 of the related regulation, the lawsuit for the prevention (prevention) of infringement, and the compensation lawsuits.
Ünal § Partners Legal Team
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