Terminating and Leaving a Union in Co-AuthorshipFurkan Derdiman
Two types of co-authorship structures are regulated in the Law on Intellectual and Artistic Works (LIAW, 1951) No. 5846: the authorship of a compound work (LIAW, Art. 9) and joint authorship (LIAW, Art. 10). This study firstly provides information about authorship of a compound work and joint authorship and then attempts to explain the legal structure of both. The study then goes on to examine the order of termination regarding authorship of a compound work according to whether the compound work has a fixed period of time or not. The study additionally discusses the possibilities that may result in leaving the authorship of a compound work. In this framework, the article focuses on the removal of the part belonging to one of the authors from a compound work by agreement of the authors or by a court decision in the absence of agreement. The paper also mentions the effects of making an ordinary partnership agreement among the authors of a compound work and explains the consequences of the death of one author of a compound work or the renunciation of one’s financial rights. Subsequently, the study examines how joint authorship may be ended and evaluates the death of one of the authors, the conversion of the liquidation share into money through compulsory execution (Turkish Code of Obligations [TCO], Article 639, par. 3, 2012) and the renunciation of financial rights in favor of others in order to discuss whether this will result in leaving the union.
Birlikte Eser Sahipliklerinde Sona Erme ve Birlikten AyrılmaFurkan Derdiman
5846 sayılı Fikir ve Sanat Eserleri Kanunu’nda ortak eser sahipliği (FSEK m 9) ve elbirliğiyle eser sahipliği (FSEK m 10) olmak üzere iki tür birlikte eser sahipliği yapısı düzenlenmiştir. Bu çalışmada öncelikle, “ortak eser sahipliği” ve “elbirliğiyle eser sahipliği” hakkında bilgi verilmiş ve her ikisinin hukuki yapısı açıklanmaya çalışılmıştır. Devamında, ortak eserin süreli olup olmamasına göre ortak eser sahipliğindeki sona erme düzeni irdelenmiştir. Bundan başka, ortak eser sahipliğinden ayrılma sonucu doğurabilecek ihtimaller ele alınmıştır. Bu çerçevede, eser sahiplerinin anlaşmasıyla veya anlaşma bulunmaması halinde mahkeme kararıyla, eser sahiplerinden birine ait kısmın ortak eserden çıkarılması üzerinde durulmuştur. Ortak eser sahipleri arasında ayrıca bir adi ortaklık sözleşmesi yapılmış olmasının etkilerine değinilmiştir. Ortak eser sahiplerinden birinin ölümü veya mali haklarından vazgeçmesinin sonuçları da izah edilmiştir. Devamında, elbirliğiyle eser sahipliğinin nasıl sona erebileceği irdelenmiş; bu birlikten ayrılma sonucu doğurup doğurmayacağının tartışılması açısından, eser sahiplerinden birinin ölümü, tasfiye payının cebri icra yoluyla paraya çevrilmesi (TBK m 639 b 3) ve mali haklardan diğerleri lehine vazgeçmesi durumları değerlendirilmiştir.
Turkish law has two types of co-authorship structures (i.e., authorship of a compound work and joint authorship) that are regulated in Articles 9 and 10 of the Law on Intellectual and Artistic Works (LIAW, 1951) No. 5846. Unlike works subject to joint authorship, a compound work can be divided into parts without deteriorating the work. Ordinary partnership provisions in the Turkish Code of Obligation (TCO, 2012) No. 6098 are applied analogously to both authorships of compound works and joint authorships in the matters not regulated under LIAW.
Based on Paragraph 2 of Article 9 in LIAW, as long as the authorship of a compound work continues, authors may apply to the court against the one who objects to a transaction related to the compound work. If the objecting author cannot prove just cause, the court decision replaces the consent of the objector. From this perspective, termination of authorship of a compound work means that the authors can no longer be compelled to utilize their own contribution in the compound work. On the other hand, copyrights arising from authorship of a created and still existent compound work should be noted to continue, because the compound work is based on both the agreement of the authors and the de facto act, or Realakt in German. Therefore, in case of an infringement against an existent compound work, authors may still demand prevention or halting of the infringement, as well as claim compensation. With regard to making transactions related to a compound work, however, authors can no longer claim or force each other based on Article 9 in LIAW.
As previously mentioned regarding termination, ordinary partnership provisions in the TCO are applied analogously. In this regard, if authors decide upon a fixed period of time or certain limitation (e.g., a one-time edition of a book) regarding a compound work, the compound authorship terminates upon completion. Prior to this, the compound authorship may be terminated by applying to the court on the basis of just cause. If the authors have not decided upon any limitation regarding the term of a compound work, one of the authors may give a notice of termination or apply to the court demanding immediate termination with just cause. According to Article 640 of the TCO, the termination of a compound authorship goes into effects after six months have passed since the notice of termination.
In order to remove a section belonging to one of the authors of a compound work, all authors of the compound work must agree to this. Nevertheless, in some cases, the court may order the removal of a section belonging to one of authors upon the application of the other authors based on Article 9 of LIAW. For instance, when one of the authors objects to updating a book according to the new TCO or is unable to update the book, the other authors may apply to the court. If the objector cannot prove just cause, the court should order the section belonging to the objector to be removed, because the court cannot order the author to update that author’s section in the book. And also, one author may demand his part be removed by court order by relying on just cause.
If one of the authors of a compound work dies, the financial rights respective to this section pass on to the deceased’s heirs. Heirs cannot be removed from the union. Furthermore, one of the authors may analogously waive the financial rights regarding that author’s section in accordance with Article 60 of LIAW, provided that this harms neither the compound work nor the other authors. Upon waiving this right, that author’s permission will no longer be required for utilizing financial rights related to that compound work.
Joint authorship arises ipso jure with the creation of the work and ends with the expiration of the preservation period or the destruction of the work. Consequently, terminating a joint authorship is not possible by notice of termination or by court decision with just cause, as the provisions in the TCO regarding the termination of ordinary partnerships are not suited to the structure of a joint authorship.
Paragraph 3 of Article 639 in the TCO, which is regarding termination of an ordinary partnership in the event of a partner’s share being liquidated through compulsory execution unless otherwise agreed, cannot be applied to joint authorship, as joint authorship cannot be liquidated due to the lack of any liquidation shares.
The results concerning the death of one of the authors in a joint authorship are also specifically regulated in Article 64 of the LIAW. Additionally, one of the authors may waive financial rights in favor of the other author or authors. In this case, the rights of the others will be expanded.