TRANSFER OF THE AUTHOR’S ECONOMIC RIGHTS
Authors who create intellectual and artistic works and their moral and economic rights concerning works which they created are regulated in the Law and Intellectual and Artistic Works w.no 5846 (“FSEK”). The author of a work is defined as the person who has created the work under the FSEK. The author has the two types of rights that moral and economic rights regarding its work and these rights belonging to the author from the date of creation of the work. The moral rights of authors are the right to disclose the work to the public, the right to designate the name, the right to give inform about the content of the work, the right to prohibition of modification and the right to preserve the integrity of the work.
The economic rights of the author are the right of adaptation (FSEK m. 21), the right of reproduction (FSEK m. 22), the right of distribution (FSEK m. 23), the right of performance (FSEK m. 24), the right to communicate a work to public by devices enabling the transmission of signs, sounds and/or images (FSEK m. 25) and the right of share and tracking (FSEK m. 45). These rights were determined by legislator within the scope of the principle of limited number.
Economic rights are absolute rights and can be exercised against everyone. However, the owner of the work can transfer his/her economic rights concerning the work to a third party or grant a license or give permission. Pursuant to Article 48/1 of the FSEK, “the author or his heirs may transfer to others the economic rights granted them by law, unrestricted or restricted as regards duration, place or scope, with or without consideration.” The person who takes over the economic right could use all the powers regarding the said right if the work transferred. Also, if it is not prevented by the contract, the assignee can transfer the said rights partially or completely to third parties. Also, the authority only to exercise the economic rights may also be granted to another person by granting a license under Article 48/2 of the FSEK. In the License Agreement, the assignor transfers only the right to use, and this right continues to be in the assets of the assignor. The difference between license and transfer is that the license only provides authority to exercise specific right or rights. In Article 80 of the FSEK, the third method called “permission” is regulated in terms of neighboring beneficiaries.
Therefore, in order to use any intellectual and artistic work, a contract must be signed with the owner of the work or their heirs. Pursuant to Article 52 of the FSEK, “Contracts and disposals concerning economic rights shall be in writing and the rights constituting their subject matter shall be specified individually.” Regulating these contracts and disposals concerning economic rights in writing and specifying the rights constituting their subject matter individually are the condition for validity within the scope of the FSEK. However, the Supreme Court has not sought the condition of a written contract in some special cases by specifying it is contrary to Article 2 of the Turkish Civil Code. Making contracts concerning economic rights is important in practice, and the fact that the producers sign a written contract for the first season and do not pay attention to this issue in the following seasons cause many disputes to arise. At this point, it is important to sign a contract regarding the transfer of economic rights for each season. Another issue considered in the Supreme Court's decisions and doctrine is that the powers and permissions given for economic or moral rights should be specified one by one in the relevant contracts. Since each right to be transferred should be counted individually in the contract, the expressions such as "I transferred economic rights," or "I have transferred all my rights" will be deemed invalid.
The ownership of the economic right or the right to exercise passes to the other party when an author of the work transfers his/her economic right or grants a license. However, in these cases, the disposals regarding the said economic right can be limited. Under Article 49/1 of the FSEK, “A person who has acquired an economic right or a license to exercise such right from the author or his heirs may transfer such right or license to another person only with the written consent of the author or his heirs.” Pursuant to this provision, the person who has acquired an economic right or license to exercise from the author cannot transfer these rights to another person without the written consent of the author.
Another important issue is that the author of the work can make promissory and disposal transaction regarding the economic rights of the work created. However, the disposal transactions regarding the work that has not yet been created or will be completed are deemed invalid under FSEK. Only commitments related that the disposal transaction will be made can be valid even if the work has not yet been created. However, this promissory transaction must also be made in writing.
As a result, in order not to face any violation of their rights, the owners of the work should prepare their contracts very carefully during the transfer process or granting the license. In order not to cause any confusion, it is extremely important to specify all transferred rights individually in written contracts.