Technology is improving at lightning speed. In time, brain-power will be needed more than man-power. Today, everything is more digital, visual and mechanic. Countries that create, manage, and realize these developments have begun to educate their younger generations in new areas, such as software and design. The reflection of this evolution in work life has shown itself in working conditions and job definitions. Employers aim to become a part of this power by providing conditions that help their employees to increase their creativity, and by promoting them. However, a crucial question arises: Who will be the owner of the oeuvres created? Is it the employers who provide the efficient environment and necessary equipment, or the employees who use their minds, education and creativity? Within this article, we will shed light on the ownership and rights of these oeuvres pursuant to the Law on Intellectual and Artistic Works ("LIAW"), the Law on Industrial Property (IP Law), and the regulations under the Law of Obligations ("LO") pertaining to contract of service provisions. Moreover, we will refer to the rights in line with contracts of work pursuant to the LO.
Relationship between the Employee and Employer
Pursuant to Article 2.d of the IP Law, the employee is defined as the person and the public official who are obliged to fulfill tasks in line with the instructions of an employer under the supervening principle pertaining to a private law contract or other such legal relations. The first section of this article will be applicable to the actors of the labor contracts regulated under the Labor Law and the contract of services regulated under the LO, Art. 393 ff., such as officers who work in research and development departments, designers who work in the ateliers, scenarists who work in advertisement agencies, engineers who work in software companies, and chemists who work in laboratories.
The Employers are the persons who provide convenient environments for these actors by using their capital and bringing in clients.
The rights of an oeuvre created by an employee, in the office of the employer, using the computer of the employer, for clients found by the employer by using his skills, creativity, education and experiences, has always been a conflict. If the parties clarified these issues in their contracts, the provisions of their contract shall apply. Otherwise, legal provisions shall govern.
Turkish legislations set forth some presumptions regarding the rights of the oeuvres. Within this scope, the provisions of the LIAW shall be applicable with regard to the literary, musical, fine arts, cinematographic, and scientific (including computer programs) works ("Works)", the provisions of the third book of the IP Law shall be applicable for two or three-dimensioned industrial designs ("Designs"), and the provisions of Patents regulated under the 4th book of the IP law shall apply regarding inventions. Moreover, Art. 427 of the LO states that the relevant provisions of the LIAW or IP Law shall apply to the rights of the employer within the scope of the contracts of service.
The Rights of the Employers under LIAW
The owner of the Work is the person who creates the Work. Within the scope of the relationship between the employer and employee, the owner is the employee; however, the law granted authority only to the employer to use the rights arising out of the Works. Pursuant to Art. 18.2, "The rights in Works created by servants, employees and workers during the execution of their duties shall be exercised by the persons who employ or appoint them; provided that the contrary may not be deduced from a special contract between such persons or from the nature of the work." To illustrate, the rights of a scenario drafted by a scenarist who works an advertising agency can be used by the employer. The employer can sell, reproduce, and adapt the scenario regardless of the confirmation of the scenarist1.
It must be stated that the LIAW separates the rights on the Works as material and moral rights, and limits the rights of employers only with the material rights2. Art. 18.2 does not regulate this fact explicitly; however, pursuant to the Supreme Court decisions3 and doctrine, since moral rights cannot be assigned, employers may gain only material rights. Therefore, moral rights, such as authority to disclose Work to the public and to designate the name, and prohibition of modification, shall remain with the employees.
Regarding moral rights, the employer can only request the right of use from its employee. For example, in case of a modification by third parties on a software developer's program, he can appoint his company to prevent the modification, to request restoration of the Work to its original condition, and/or claim compensation on his/her behalf. It should be emphasized also that in this case, the employee will be able to resign from his/her company when the manner of the employer's using this authority is of such a nature to damage the honor and reputation of the employee.
The Rights of the Employers under the Provisions of Designs
Pursuant to the IP Law which entered into force on 10.01.2017, unless otherwise regulated in the contracts, the rightholders of the Designs that are made by the employees during the term of employment, in a private enterprise or public authority, while performing, as part of his/her obligation, the task he/she has been assigned to, or which are based to a great extent on the experience and work/activity of the private enterprise or public authority, are the employers. In addition, if the employers request, the rights of the Designs that are not within the scope of the employers' tasks, but made due to the business' general field of activity are also granted to the employers. However, different than the provisions of the LIAW, under the IP Law, employees are entitled to a fee in line with the importance of the Designs. Regarding the probable conflicts of the amount of the fee between the parties, Art. 74.1 regulates the possibility to apply to the competent specialized court for intellectual and industrial property rights.
The Rights of the Employers under the Provisions of Patents
Employees' inventions that are made during their term of employment, in a private enterprise or public authority, while performing, as part of his/her obligation, the task he/she has been assigned to, or which are based to a great extent on the experience and work/activity of the private enterprise or public authority, are service inventions. The inventions that are not included within the definition, above, are free inventions. In all circumstances, employees are obliged to notify their employers when an invention has been created. Unlike the provisions of Works and Designs, the employers have the right of choice. Regarding service inventions, they have three choices: 1) to register the invention in whole, in their names, by applying to Turkish Patent Institute ("TPI"), 2) to apply to TPI to obtain partial rights to the invention, 3) to allow the invention become a free invention by not acting for four months after the employees' notification. The employees must allow their employers to benefit from the free invention, where the inventions fall within the field of activity of the employers' enterprises, or where the employers' enterprises are making serious attempts to become active in the field of the invention. If the employers do not respond to their employees within three months after the notification, they lose the right to benefit from the free invention.
Employees are entitled to a fee in the event that the employers request the full rights of the invention, as is regulated for the Designs. The fee amount shall be determined with a written contract between the parties. Even though the IP Law stipulates an arbitration process concerning the conflicts arising from the amount of the fee, a communiqué on this matter has not yet been published.
The Rights under the Contracts of Work
The contracts of work do not feature the principle of supervenience. In this section, the term 'contractor' will be used instead of 'employee.' Contractors working independently are the owner of their works and hold all moral and material rights from the beginning. However, contractors are under the obligation to transfer the material rights to the contractee. If they do not transfer the rights, the contractees can claim their damages pursuant to the LO provisions. It should be stated that in this case the contractors cannot be forced to transfer his/her rights to the contractee.
Technology develops rapidly and changes our lives entirely. It is crucial that we adapt ourselves to this mechanism and try to be a part of it. Within this scope our purpose should be to create software, designs and inventions, and these should be protected under the law without wasting time as regard to whom the owners or the rightholders are. With this perspective, employers should feel safe to promote their employees for creation. In addition to all of these regulations, the law should be active to keep up with innovations.
1 Decision of General Chamber of Court of Cassation dated 22.06.2011, numbered 2011/11-401 E., 2011/441 K. can be shown as an example.
2 For more information http://www.erdem-erdem.av.tr/publications/law-post/rights-of-owners-in-their-intellectual-and-artistic-works/. (Accessed on 31.04.2017)
3 Decision of 11th Chamber of Court of Cassation dated 15.06.2006, numbered 2006/3490 E., 2006/6930 K. can be shown as an example.---------------