January 6,2023

Author: Görkem Çetin

Copyright, which is described as an absolute right, can be defined as all of the rights and powers of the person who creates a work of idea or art as a result of an intellectual effort. These rights and authorizations are protected by the Law No. 5846 on Intellectual and Artistic Works (hereinafter referred to as "FSEK"). Within the scope of this study, the issues that should be considered in the transfer of copyright are examined.

As a rule, all financial and moral rights relating to a work belong to the person who created that work. In the case of processed or compiled works, without prejudice to the rights of the actual author, the person who made the processing or compilation is the author. In regard to the cinematographic works, the legislation, which provided joint authorship, qualified the director, the composer of the original work, the scriptwriter, and the dialogist as the author and stated the animator as the joint author in the cinematographic works made with the animation technique.

Within the scope of the copyright, the financial rights, depending on the type and quality of the work, are defined with a limited set of rights, such as the right to adapt, reproduce, publish, communication with the public, share, and monitor. The protection period of these rights lasts for as long as the author lives and seventy years after his death. On the other hand, the moral rights are the right of public display of work, attribution of the author’s name, prohibition of modification of work, and the rights of the author against the owner and the possessor. Although these rights are regulated in a limited number, such as financial rights, they are protected indefinitely.

The term transfer of copyright, refers to the transfer of rights and authorizations regarding the work created. Likewise, the declarations of intention regarding the transfer of authorship as a whole are not valid.

The author may transfer his copyright by a legal transaction or a testamentary disposition, and it is also possible to inherit this right. According to the provisions of the inheritance law, this right may subject to a testament or an inheritance contract.

However, while moral rights are not included in the inheritance and do not inherit to the inheritors due to the fact that they cannot be measured in Money. The author can, however, choose to leave the use of these rights to someone else while he is alive or to subject the use of these rights to a testamentary disposition. In the absence of such a situation, these rights may be exercised by the persons listed in the law (the executor of the will, and if this is not appointed, the surviving spouse and children and designated inheritors, parents and siblings), provided that these rights are limited to the cases specified in Article 19 of FSEK. In the event that the rights are not exercised by these persons, it is possible for a person who has acquired a financial right from the author or his successor to exercise these rights, provided that he proves that he has a legitimate interest.

Moral rights cannot be transferred to third parties since they are dependent on the identity of the author. However, it is possible to transfer the usage of these rights. Although the legislator does not stipulate a special form requirement for the transfer of the usage of moral rights, we recommend that this transfer should also be made in written in terms of provability.

 Pursuant to Article 48 of FSEK, the author or his inheritors may transfer the financial rights granted to them by law to others, either mutually or unilaterally, limited or unlimited in terms of duration, place and content. It is also possible to transfer only the authorization to use financial rights. If this transfer does not prevent the holder of the financial right from granting the same license to others, it is considered a non-exclusive license, If it is only for one person, it is considered an exclusive license. Unless otherwise provided by law or contract, it should be noted that every license will be considered a non-exclusive license.

While it is possible to make obligatory transactions (commitments) in relation to works that have not yet been created or completed, the realization of the disposition for the transfer of financial rights depends on the fact that the work subject to the disposition has been created and completed. However, it should be noted that, generally, in transactions regarding the transfer of copyright, the obligatory transaction and the act of disposal stages are combined in the same contract.

 The transfer of financial rights or the authorization to use them is subject to a written form and this form is a condition of validity. Furthermore, for the transfer of copyright, the financial rights to be transferred must be shown separately in the agreement.

 As clearly stated in Art. 55 of the FSEK, unless otherwise agreed, the transfer of a financial right or the granting of a license does not cover the translation or other processing of the work. In addition, Article 57/1 of the FSEK provides that the transfer of the ownership right over the original or reproduced copies shall not include the transfer of intellectual property rights, unless otherwise agreed. As can be understood from this exceptional provision, even in cases of transfer of the right of ownership or possession, it cannot be said that the copyright will be deemed to have been transferred within this scope. However, Article 57/2 of the FSEK provides an exception to this rule and states that anyone who acquires the possession of plates and other reproduction tools from a person who has the right to reproduce a work of fine art shall be deemed to have acquired the right to reproduce, unless otherwise agreed.

In the event that the transfer of the copyright is made through testamentary disposition, both the written form stipulated in FSEK and the form of will or inheritance agreement stipulated in the Civil Code must be fulfilled.

The contract for the transfer of copyright must contain all the essential points, both objective and subjective. In this context, the parties to the agreement, the subject matter, the rights to be transferred, the rights and obligations of the parties, if the transfer is for consideration, the price and how the payment will be made, the duration and limits of the agreement (e.g. if the contract is to be made on the number and quantity of prints, these issues), the type and termination of the agreement, the penalty clause if agreed upon, the legal residence addresses of the parties and which courts will have jurisdiction in case of any dispute are among the essential points that may be included in a copyright agreement.  Moreover, it is also important that the contract includes the number of copies and date and be signed by all parties.

 It is possible for the person , who takes over the financial rights under the copyright contract, to transfer these rights to  third parties provided that he obtains the written consent of the author or his inheritors. Again, it should also be noted  that  written consent is required for the transfer of the processing right.

 In addition to that, it should be noted that the author may withdraw from the contract in the event that the assignee of the financial rights within the scope of the transfer of copyright fails to make proper use of the rights and powers within the agreed period or, if no spesific period has been agreed, within an appropriate period of time, and therefore the interests of the author are substantially violated.

 However, the death or bankruptcy of the assignee will not lead to the return of the right to the author, unless the purpose of the assignment has disappeared or the assignment period has expired, in cases where the exercise of the right does not depend on the identity of the assignee due to the nature of the work. In the event of death of the assignee, the right shall be transferred to the inheritors of assignee and in the event of bankruptcy, to the bankrupt's estate.

 As a conclusion;

·       The transfer of copyright by legal transaction or the transition of copyright by inheritance is possible.

·   Moral rights cannot be transferred to third parties due to their nature. However, it is possible to transfer the usage of these rights, and we recommend that this transfer be made in written in terms of provability.

·        As a rule, the transfer of copyright may come up only in terms of financial rights.

·   It is possible that this transfer can be made mutually or unilaterally, in a limited or unlimited manner in terms of duration, location and content.

·  The law stipulates a written form requirement for the transfer and states that the transferred rights must be shown separately in the agreement.

·    Finally, it should be noted that since the rights and authorizations of the author on the financial rights will not be completely terminated in the transfer of copyright, the assignee will need to obtain written consent from the author or his heirs in order to transfer these rights to third parties.