INFORMATION TECHNOLOGY LAW Lecture 5- Copyright Dr. Kadir Bas

INFORMATION TECHNOLOGY LAWLecture 5- Copyright

Dr. Kadir Bas

General

• Copyright relates to intellectual and artistic works, such as books, music, paintings and sculptures, films and technology-based works such as computer programs and electronic databases.

• Registration is normally not necessary to benefit from copyright protection .

• Law No. 5846 on Intellectual and Artistic Works (Fikir ve Sanat Eserleri Kanunu) (FSEK)

• Bern Convention for the Protection of Literary and Artistic Works

Work (Eser)

• The subject-matter of copyright protection is intellectual or artistic works.

• FSEK art.1/B defines the term ‘work’ as any kind of intellectual and artistic product bearing the characteristics of its author and which is considered a work of science and literature, music, fine arts or cinema.

Conditions for Copyright Protection

In order to be eligible for copyright protection, a work must meet two conditions:

1) It must be an original creation of its author

2) It must fall within any of the specific categories of work mentioned in FSEK.


1) Originality• To be protected by copyright law, an author’s works must

originate from him; in other words, they must have their origin in the labour of the author.

• To qualify for copyright protection, the form of the expression of an idea must be an original creation of the author. However, it is not necessary that works should pass a test of imaginativeness, of inventiveness.

• The protection is independent of the quality or the value attaching to the work. It will be protected regardless whether it can be considered, according to taste, a good or a bad work and regardless of the purpose for which it is intended.


1) Originality (continued)• Copyright does not protect pure ideas, but the expression of ideas. For example, if an artist have an idea to make a specific sculpture and tell this to a friend of him, this idea would not be protected. However, if the artist made this sculpture or draw its preliminary sketches, it would be protected by copyright law.


2) Falling within any category of intellectual and artistic workAccording to FSEK, there are four types of intellectual and artistic works:a) musical works (musiki eserleri)b) works of fine art (guzel sanat eserleri)c) works of cinema (sinema eserleri)d) Scientific and literary works (ilim ve edebiyat eserleri)

Types of Intellectual and Artistic Works

a) musical works (FSEK art.3)Works of music are all kind of compositions (beste), with or without lyrics.


b) works of fine art (FSEK art.4)• Oil and watercolour paintings; all kinds of pictures, designs, pastels,

engravings, manuscripts and gilding, works drawn or fixed with mineral, stone, wood or other substances by scratching, engraving, tapping or similar methods, calligraphy, screen printing,

• Statutes, reliefs and carvings,• Works of architecture,• Handicrafts and minor works of art, miniatures and products of

decorative art, and textile and fashion designs,• Photographic works and slides,• Graphic works,• Cartoon works,• All kinds of personifications.


c) Works of cinema (FSEK art.5) works such as films of an artistic, scientific, educational or technical nature or films recording daily events or movies, that consist of a series of related moving images with or without sound and which, regardless of the material in which they are fixed, can be shown by the use of electronic or mechanical or similar devices.

Types of Intellectual and Artistic Works as literary workd) scientific and literary works (FSEK art.2)• Works that are expressed by language and writing in any form (e.g. novel,

poems) and computer programs

• All kinds of dances, written choreographic works, pantomime and similar theatrical works without dialogue

• All kinds of technical and scientific photographic works, all kinds of maps, plans, projects, sketches, drawings, geographical or topographical models and similar works, all kinds of architectural and urban designs and projects, architectural models, industrial, environmental and theatrical designs and projects, lacking in aesthetic quality.

Computer Programs as Literary Works

• Computer programs are generally considered to be literary works.• FSEK art.2 protects:

- computer programs expressed in any form

- preparatory designs provided that they lead to a computer program at the next stage

• Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright.• Accordingly, the source code and object code of a program can be protected by copyright. However, the programming language, algorithms and the format of data files used in a program as well as the graphic user interface cannot benefit from copyright protection. (Oracle v Google, SAS Institute Inc. v World Programming Ltd).

Computer Programs as Literary Works

• The translation, adaptation, arrangement and any other alteration of a computer program can be protected by copyright as an adaptation of the original work.

• Adaptations are protected by copyright independently of the original work. The author of the original work should normally permit the adaptation.

• Databases obtained by the selection and compilation of data and materials according to a specific purpose and a specific plan, which are in a form that can be read by a device or in any other form. This protection cannot be extended to the data and materials contained in the database.

Author

• The author of a work is the person who has created it.• The author of an adaptation or collection is the person who has made the adaptation.

• The commercial rights in works created by civil servants, employees and workers during the execution of their duties will be exercised by the persons who employ or appoint them unless the contrary may not be deduced from a special contract between such persons or from the nature of the work.

Rights of the Author

• The rights of the author are divided into two main categories:

1) Moral rights (manevi haklar)

2) Commercial rights (maddi haklar)


1) Moral Rights

a) authority to disclose(ifşa etmek) the work to the public

• The author shall exclusively determine whether or not his work will be disclosed to the public and the time and manner of its publishing.

• Only the author may give information on the contents of a work of which the whole or a substantial part has not yet been made public, or whose main features have not yet been introduced to the public in any way.

• Even if he has given written approval to others, the author may prohibit the promotion to the public or the publishing of both the work and its adaptation, where the manner of disclosing to the public or publishing of the work is of such a nature as would damage the honour and reputation of the author. Waiving such power of prohibition by contract will be invalid.


1) Moral Rights (continued)b) The Authority to Designate(adlandırmak) the Name • The author will have the exclusive authority to decide whether the work will be disclosed to the public or published with or without the name of the author or under a pseudonym (takma ad).

• The real author of a work may ask the court to establish his rights, if the creator of the work is disputed or if another person claims to be the author of the work.


1) Moral Rights (continued)C) Prohibition of Modifications• Without the consent of the author, no abbreviation, additions or any

other modification can be made to the work or to the name of the author.

• A person who is authorised by law or the author to adapt, disclose to the public, reproduce, publish, perform or distribute a work can make modifications that are deemed indispensable due to the technique of adaptation, reproduction, performance or publication, without special permission by the author.

• The author may prohibit all modifications, which damage his honour and reputation or change the nature and characteristics of the work, even if he has given written and unconditional permission. Waiving this right will be invalid even if agreed by contract.


1) Moral Rights (continued)Term of Protection• Moral rights normally end when the author dies.• In principle, moral rights cannot be inherited or transferred.• However, the close relatives of the author, such as spouse, children,

parents, siblings, may exercise some of moral rights after the death of the author. Similarly, some moral rights can be exercised by the non-relatives if the author authorises such a person for that purpose before his death.

• For example, if the will of the author is the disclosure of his work to public after his death, the person to whom he has authorised, or his close relatives, can exercise this right on behalf of the author.


2) Commercial rightsa) Right of Adaptation (Isleme Hakki)• The right to exploit a work by adapting it belongs exclusively to the author.

• For example, the author of a novel has the exclusive right to adapt it to a movie.


2) Commercial rights (continued)b) Right of Reproduction (Cogaltma Hakki)• The right to reproduce the original or copies of a work in any form or by any method, in whole or in part, directly or indirectly, temporarily or permanently belongs exclusively to the author.

• the acts of loading, displaying, running, transmitting and storing a computer program will be considered as reproduction of the program if such acts require the temporary reproduction of the computer program.


2) Commercial rights (continued)c) Right of Distribution (yayma hakki)• The author has the exclusive right to rent, lend, put up for sale or

distribute in any other way the original or copies of a work.• The author has the exclusive right to import copies of a work that have

been reproduced abroad with his permission and to exploit such works by distribution.

• Copies that are reproduced abroad may not under any circumstances be imported without the permission of the author and/or the holder of the right of distribution who has the author’s permission.

• However, once specific copies of a work are permitted to be sold within the country, the resale of these copies following their first sale or distribution does not require permission of the author. (principle of exhaustion).


2) Commercial rights (continued)d) Right of Performance (temsil hakki)• The author has the exclusive right to exploit a work by performing it in such ways as reciting, playing, acting or displaying it on public premises either directly or by means of devices enabling the transmission of signs, sounds or images.

• The right of performance may not be exercised by other natural or legal persons without the written permission of the author.

• For example, in order to be able to perform a play, the author of the play must permit this.


2) Commercial rights (continued)e) Right to broadcast a Work to Public (yayimlama hakki)• The author will have the exclusive right to broadcast or re-broadcast the

original work or its copies to public by way of wire or wireless means such as radio and television, satellite or cable, or by the Internet.

• For example, the broadcasting right of Turkish Super Lig matches belongs to Turkish Football Federation. Currently the Federation has given LIGTV the right to broadcast them.

• The author has the right to permit or prohibit the sale or distribution of the work or its reproduced copies to the public by wire or wireless devices and the communication of the work to the public by providing access to it at a time and place chosen by natural persons.

• For example, LIGTV has the right to prohibit the display of short version of football matches on Youtube.


2) Commercial rights (continued)Terms of Protection• The term of protection for commercial rights will last for the lifetime of the author and for 70 years after his death.

• If there is more than one author, this period will end upon the expiry of 70 years after the death of the last remaining author.

• If the first author is a legal person, the term of protection will be 70 years from the date on which the work was made public.

Limitations to the Rights of the Author

FSEK provides some limitations to copyrights. For example;- Published works may be freely performed in all educational

institutions for the purpose of face-to-face education and without directly or indirectly aiming for profit.

- It is free to create selected or collected works, which are dedicated to educational purposes, by making quotations from published musical, literary and scientific works.

- It is free to make quotations from literary and scientific works for academic works, provided that the name of the author is mentioned.

- It is permitted to reproduce all intellectual and artistic works for personal use without pursuing profit.


Personal Use of Computer Programs• It is permitted to see or download any work on the internet for personal use, except computer programs.

• FSEK art.38 sets out special rules for computer programs.


Personal Use of Computer Programs• A person cannot use a computer program even for personal purposes

if he has acquired it illegally. • A person who has lawfully acquired the computer program can load,

run and correct errors. This freedom cannot be prohibited by contract. • A lawful acquirer of a computer program can make a backup copy to

the extent that it is necessary to ensure the use of that program. This freedom cannot also be prohibited by contract.

• The lawful acquirer can also observe, analyse or test the functioning of the program in order to determine the ideas and principles underlying any element of the program while performing any of the acts of loading, displaying, running, transmitting or storing the program.


Personal Use of Computer Programs• A lawful acquirer is permitted to reproduce the code of a

computer program and translate its form to the extent that it is necessary for providing its interoperability with other programs.

• The information obtained by this way: - cannot be used for any purposes other than to achieve the

interoperability; - cannot be given to others, except where necessary for the

interoperability- cannot be used for the development, production or

marketing of a computer program substantially similar in its expression.

Thank You!

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INFORMATION TECHNOLOGY LAW Lecture 5- Copyright Dr. Kadir Bas