02.04.2024

Authors: Görkem Çetin, Enis Kadıoğlu, Cüneyt Baş

Podcasting, which first emerged in the United States in 2004 as a vocal narrative concept, has  become an important means of mass communication, along with emerging technology. Unlike traditional broadcasts, there is no specific regulation on whether podcasts, which provide ease of access and availability to their listeners when requested, are copyrighted under intellectual property law. For this reason, we have assessed whether podcasts can be classified as works under the Law on Intellectual and Artistic Works Numbered 5846.

1.   What is a Podcast?

A podcast is the publication of digitally prepared audio or video products that can be downloaded to computers or other portable devices over the internet.[1] The term podcast, derived from the combination of the word “pod” meaning capsule, seed, etc. and the word “broadcast” meaning broadcast, was chosen as the word of the year in the Oxford English Dictionary in 2005 and been used in its current form in the dictionary since then.[2] Shortly, podcasting can also be defined as a broadcasting activity carried out over the internet and through portable devices[3]. Podcasts, which first appeared in the United States in 2004, gained popularity in 2005 when Apple started to offer them to users through the iTunes application. Providing access to users in various fields such as journalism, art, history, autobiography, entertainment, and education, podcasts are among the most preferred publications, especially in countries such as the USA, England, France, Canada and Japan.[4] Considering the number of podcasts, which are frequently preferred all over the world today, and the increase in the number of listeners, we believe that podcasts will have an important place within the scope of the Law on Intellectual and Artistic Works in the coming years.

2.   What is a work according to the Law on Intellectual and Artistic Works?

Article 1/B titled “Definitions” of Law No. 5846 on Intellectual and Artistic Works defines the concept of work as “all kinds of intellectual and artistic products that bear the characteristics of their owner and are considered as works of science and literature, music, fine arts or cinema”.

In this context, the conditions for an intellectual product to be protected as a work are as follows:

i.             It shall bear the personality of its owner,

ii.            It shall be shaped as a result of an intellectual endeavour,

iii.          It shall be included in one of the types of works listed in the Law.

For a clearer understanding of the matter, we believe that it would be useful to briefly explain the above conditions under the Intellectual and Artistic Works:

    i.     Bearing the personality of the author: For an intellectual product to qualify as a work, it shall not be of a nature that can be created by anyone[5], and it shall reflect the style and creativity of its owner.[6]

As a matter of fact, in the decision of the 11th Civil Chamber of the Court of Cassation dated 11.10.2002, File No. 2002/8275, Decision No. 2002/8839, it is clearly emphasized that this issue is an essential element that shall be determined first[7]:

“Law on Intellectual and Artistic Works No. 5846 defines a work as any intellectual and artistic product that bears the characteristics of the author and falls within one of the types of scientific-literary, musical, fine art and cinematographic works. Although Article 2/3 of the aforementioned law implies that all kinds of maps are works of authorship, whether it is a work that will benefit from the protection of the law depends on the evaluation of this provision together with the provision of Article 1/B to determine whether it bears the characteristics of its owner."

   ii.      Formation as a Result of an Intellectual Effort: The work, which is the product of an intellectual effort, shall be reflected to the outside world and take shape and exist within the framework of certain forms. [8] In this respect, it is not possible to characterize ideas and thoughts that have not been embodied in any way as works within the context of the Law on Intellectual and Artistic Works.[9]

 iii.  Inclusion in one of the types of works listed in the Law: The acceptance of an intellectual product as a work depends on its falling within one of the types of works enumerated in the law within the framework of the “numerus clausus” principle. These types can be categorized under four main headings: works of science and literature, musical works, works of fine art and cinematographic works. In addition, works created by making use of existing work are also defined as “works of composition”.

At this point, it should be noted that the legislator has expressed the types of works included in this group by way of sampling in each category of works, and our opinion is that this enumeration is not exhaustive and that the intellectual product included in one of the four main types should be protected as a work if it meets the other conditions listed in the Law, even if it is not included in the types of works listed in the subgroups.

3.   Legal Nature of Podcasts under the Law on Intellectual and Artistic Works

Podcasts can benefit from the legal protections under the Law on Intellectual and Artistic Works only if they meet the conditions mentioned above of being the product of intellectual effort, bearing the characteristics of the owner and being included in one of the types of works listed in the law.

As stated above, the works protected under the Law on Intellectual and Artistic Works are listed under four main headings, but the way of sampling is preferred in terms of the types of works included in these main headings. In this case, it is possible to qualify podcasts as works of science and literature if they have the conditions of bearing the personality of the owner and being shaped as a result of an intellectual effort.

It should be noted that “scientific and literary works” regulated under Article 2 of the Law on Intellectual and Artistic Works are defined under 3 sub-headings as follows:

a)  Works expressed in any form of language or writing, and computer programs presented in any form, and their preparatory designs, provided that they result in a program at a later stage,

b)  All kinds of racquets, written choreographic works, pantomimes and similar non-verbal stage works,

c)   Photographic works of technical and scientific nature, all types of maps, plans, projects, sketches, pictures, models and similar works of geography and topography, all types of architectural and urban design and projects, architectural models, industrial, environmental and stage design and projects.”

Considering the systematics of the Law and the case law of the Court of Cassation together, we are of the opinion that podcasts may benefit from the legal protection under the Law on Intellectual and Artistic Works as “works expressed in any form of language and writing” if they meet the conditions listed in subparagraph B of Article 1 of the relevant legislation.

Thus, the 11th Civil Chamber of the Court of Cassation, in its decision dated 23.02.2015, File No. 2014/17228 , Decision No. 2015/2414;

“According to the claim, the defence adopted an expert report and the entire file scope, the court decided that the plaintiff's statements in the discussion program called “Eğrisi Doğrusu” broadcast on the television channel are within the scope of “works expressed in language” per Article 2 of the Law on Intellectual and Artistic Works.”

As we have explained above, although podcasts should benefit from the legal protections under the Law on Intellectual and Artistic Works if they meet the necessary conditions, it is possible to benefit from different legal protections in the presence of various reasons, even if such broadcasts are not accepted as intellectual works. In this context, it should be noted that such intellectual products that cannot be considered as works may also be protected under general provisions. The unfair competition provisions regulated between Articles 54 and 63 of the Turkish Commercial Code No. 6102, the tort provisions regulated between Articles 49 and 76 of the Turkish Code of Obligations No. 6098, and the provisions on the protection of personality regulated between Articles 23-35 of the Turkish Civil Code No. 4721 may be essential in this respect.

In this respect, the 11th Civil Chamber of the Court of Cassation, in its decision dated 13.11.2009 and File No. 2008/7336, Decision No. 2009/11814;According to the Law on Intellectual and Artistic Works, intellectual products such as discoveries, inventions, methods, techniques, etc. are not protected as works even if they are original works created as a result of a very long intellectual effort. Such intellectual products are subject to industrial property or unfair competition provisions if the conditions are met.” According to this provision, intellectual products that are not classified as works under the Law on Intellectual and Artistic Works may still receive protection under general legal regulations, provided they meet the specified conditions.

Conclusion:

1-       Podcasts, which are broadcasting activities carried out over the Internet via portable devices, may be considered as works if they meet the conditions set out in Article 1/B of the Law on Intellectual and Artistic Works and may benefit from the legal protections under the relevant law.

 

2-    If podcasts are not recognized as works within the scope of the Law on Intellectual and Artistic Works, legal protections provided within the framework of personality rights or unfair competition or tort provisions may come to the agenda in the presence of the conditions in the general regulations.


[1] Emrah Budak, “Dijital Haberciliğe Farklı Bir Bakış: Podcast Yayınları”, Gümüşhane University Faculty of Communication Electronic Journal, Vol: 9, Issue 1, March 2021, p. 374;; https://tr.wikipedia.org/wiki/Podcast, Accessed: 22.03.2024.

[2] M. Virginia Madsen, “Voices-Cast: A Report on The New Audiosphere of Podcasting with Specific Insights for Public Broadcasting”, ANZCA09 Communication, Creativity and Global Citizenship. Brisbane, July 2009, p. 1192.

[3] Gözde Gürbüz Arslan, Türkiye’de Podcast Yayıncılığı: Üretici Odaklı Bir İnceleme, Ankara University Institute of Social Sciences, Ankara, p. 37

[4] Emrah Budak, ibid, s. 374; https://tr.wikipedia.org/wiki/Podcast, Accessed: 22.03.2024.

[5] Ernest Hirsch, Hukuki Bakımdan Fikri Say Cilt 2. İstanbul: İktisadi Yürüyüş Matbaası ve Neşriyat Yurdu, 1943, p.11.

[6] Ünal Tekinalp, Fikri Mülkiyet Hukuku, 5th Edition, Istanbul, 2012, p. 105 ff.

[7] İlhami Güneş, Uygulamada Fikir ve Sanat Eserleri Hukuku,  4th Edition, Seçkin Publishing, Ankara, 2022, p. 65.

[8] Raha Samandı, Türk Fikir ve Sanat Hukukunda Eser ve Eser Sahibi, Ankara University Institute of Social Sciences, Ankara, 2019, p. 37.

[9] Nuşin Ayiter, Hukukta Fikir ve Sanat Ürünleri, Ankara, 1981, p. 43.

TOP