TÜRKIYE Law and Practice Contributed by: Meltem Manav and Yeşim Kumova, KM Legal
be the product of intellectual effort, reflect the author’s individuality, be fixed in a perceptible form, and fall within a recognised category of works. Copyright arises automatically upon creation; hence, no registration or formality is required. Certain sector- specific requirements exist such as bandrol obliga- tions for cinematographic and musical works and non-periodical publications. These are regulatory but not constitutive of rights. Optional registration may, however, assist in evidencing authorship and date of creation. 3.3 Authorship and Ownership Under Article 8 of the FSEK, authorship vests in the natural person who creates the work; legal entities cannot be authors. The person named on the work is presumed to be the author unless proven otherwise, and the creator of an adaptation or compilation is rec- ognised as its author, without prejudice to rights in the underlying work. Where multiple persons contribute, they are joint authors if the work forms an indivisible whole. If contributions are separable, each person is the author of their own part. In cinematographic works, the director, scriptwriter and composer, and the animator for animated works, are deemed joint authors. For works created in the course of employ- ment or under commission, authorship remains with the individual, but the economic rights are, by law, exercisable by the employer or commissioning party within the scope of duties or contract. Moral rights remain personal to the author and cannot be exer- cised by others. 3.4 Scope of Rights and Moral Rights Under FSEK, copyright comprises economic and moral rights. Economic rights, exhaustively listed in Articles 21–25 and 45, include adaptation, reproduction, distribution, public performance and communication to the public including digital transmission. These rights may be assigned or licensed exclusively or non-exclusively, provided the agreement is in writing and each right is specified separately. Moral rights, regulated in Articles 14–17, are personal to the author and include the rights of disclosure, attri-
bution and integrity. They are non-transferable, though their exercise may be authorised to third parties and, after death, they pass to heirs in a limited manner. Article 80 further recognises neighbouring rights for performers, phonogram producers, broadcasters and film producers, without prejudice to the author’s rights. 3.5 Term of Protection and Termination The general term of copyright protection is the life of the author plus 70 years. In the case of joint author- ship, the term runs from the death of the last surviv- ing author. Where the rights holder is a legal entity, the term is 70 years from disclosure. For works pub- lished posthumously, protection lasts 70 years from the author’s death, whereas for anonymous works, the term runs for 70 years from the date of disclo- sure. The duration of protection for an original work and its adaptations is assessed independently. Article 58 further provides a right of withdrawal. Should the transferee or licensee fail to exploit the work prop- erly, the author may revoke the grant and recover the economic rights, subject to equitable compensation where the failure is not attributable to fault. 3.6 Limitations, Exceptions and Defences Exceptions and limitations to copyright are exhaus- tively regulated and may be invoked only where expressly provided by statute (Articles 30–47, FSEK). These operate as grounds of lawfulness and may be raised as a defence in infringement proceedings. Key exceptions include use for public order and adminis- trative purposes; use of legislation, court decisions and parliamentary speeches; educational uses; and quotation, subject to prior lawful disclosure, attribu- tion and proportionality, rather than a broad “fair use” doctrine. Further exceptions cover news reporting and freedom of expression, private non-commercial use (subject to the three-step test), certain uses for persons with disabilities, and depiction of works permanently located in public places. Parody is not expressly regulated but may be accommodated within quotation and free-use principles. These exceptions are interpreted restrictively and on a case-by-case basis, with courts assessing compliance with moral rights, attribution requirements and proportionality.
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