The Clash: Architecture's Right vs. Property Right under Intellectual Property Law - Turkey
Updated: Feb 28, 2018
Under Turkish IP Law (No: 5846), the artist or the owner of the artistic work has certain moral and material rights to protect his/her project. However, there are questions as to whether this protection can be extended to buildings which are the end product based on the project of the architect.
Up until mid 2000s, the building which is the end product of the project was seen as part of the project. Therefore, architects were considered to have material and moral rights over projects and any building that was built with a project that was developed by an architect.
However, since 2005 there has been a shift in the court decisions and a distinction is made between the project and the building. In the recent decisions, the project is regarded as a literary work as stipulated in Art. 2 of the IP Law and there is no requirement for such work to have artistic value to be protected under IP Law. Therefore, it is possible to say that the architect has absolute rights on the project itself.
On the other hand, the constructed structure (building) is not accepted as an artwork if there is no aesthetic value or is actually an artwork. Therefore, a building without any aesthetic value cannot be protected under the IP Law and architects cannot exercise any rights over the building itself.
Change in Buildings - Structures:
As a rule, works of art cannot be changed without the permission of the artist. Therefore, if a building is seen as an artwork based on the evaluation of aesthetic value, architect’s permission is required to make changes to that building. There are certain views in the legal doctrine which state that if change is required for legitimate and mandatory purposes (i.e. adding an elevator, adding fire exit doors etc.) permission is not required.
On the other hand if the building does not have any aesthetic value, in other words if it is an ordinary-common building, that do not reflect the character of the architect, than architect’s permission is not required as non-aesthetic structures are not protected under the IP Law. The change in such structures is not considered to be a change in the project.
In the case of a change in a building which is regarded as an artwork, the architect has the right to initiate both legal and criminal cases with the claim of infringement of material and moral rights.
Furthermore the architect may request to restore the building to its previous state and material & moral compensation may also be requested. In addition, if a criminal complaint is lodged there is a possibility of a criminal sentence of up to five years or judicial fine in accordance with Article 71 of the IP Law. In practice, members of the Board of Directors are held liable in case of violations of material and moral IP rights within the company and the indictment is drafted against the members of the Board of Directors.