Fault Assessment in Infringement of Intellectual and Artistic Works
Pursuant to the Code No. 5846 on Intellectual and Artistic Works (“the Code”), a person whose moral and financial rights arising from the work have been infringed has a right to sue the infringer for prohibition of the infringement which is stipulated in Article 66 of the Code. In this context, it is clear that in case of an unauthorized use and representation of the intellectual and artistic works (“work”) listed within the scope of the Code, an infringement on the financial and moral rights of the author will occur.
Some cases of infringement of moral rights are specifically listed in the Article 67 of the Code. For example, the cases of infringement of moral rights, which are specifically regulated in the Code, are as follows;
Presentation of an unpublished work to the public without the consent of the owner or against their will,
Putting the name of the author on the work against the will of the author,
If the name of the author is not included in the work, it is placed incorrectly or it is placed in a way that causes ambiguity,
In case of not showing the source for the work, giving wrong or insufficient source,
In case of changes in the work without permission of the author.
And pursuant to the Article 68 of the Code, regarding the infringement of financial rights; processing, duplicating, distributing, representing or transmitting a work, performance, phonogram or production to the public by means of any kind of sign, sound or image transmission without the written permission of the right holders will violate their financial rights. Again, according to this article, which regulates the violation of financial rights, right holders can request a maximum of three times the price that they may request from the persons who performed the actions listed, if a contract has been concluded, or the current value to be determined in accordance with the provisions of the Code. Claims arising from this article are not in the nature of compensation, but are in the nature of legally demanded remuneration. Accordingly, there is no requirement for fault in claims to be made based on the Article 68 of the Code. However, demonstration of the fault might be a critical factor for the court to determine the amount of the compensation.
When the above mentioned cases are evaluated within the scope of the Turkish Code of Obligations No. 6098 (the “Code of Obligations”), it is appropriate to declare the unauthorized usage of works as an act of tort. However, when the action is evaluated as a tort within the scope of the Code of Obligations, the fault of the person who caused the damage will be sought. In cases where the fault is not sought, no demands can be made from the person who caused the damage for the elimination of these damages due to tortious act.
With the regulation brought by the Code, the fault of the infringer or other persons who cause the damage is not obligatory for the damages arising from the unauthorized use of a work. This regulation can be considered as an advantageous provision for the right holders. Since, the person whose moral and financial rights have been violated will be able to take an action for the prohibition of infringement and claim compensation arising from the infringement of moral rights against the infringers in accordance with the Code, whether they have a fault or not regarding the unauthorized use of the works.
Although there is no requirement for fault in cases where taking an action in the use of unauthorized works in accordance with the Code and doctrinal views, the existence of fault will play an important role in determining the amount of compensation to be determined in case of a dispute arising from the infringement cases. Because, although the person may resort to the remedy of infringement in case of violation of their financial and moral rights in accordance with the Code, the existence of fault will be sought in compensation claims arising from the violation of their financial rights. To elaborate, in the action taken for prohibition of infringement in order to terminate the violation of financial and moral rights, no fault is necessary. In this action, the fault will be effective in determining the type and nature of the measures to be taken by the court and the compensation amount that can be claimed up to three times for the violation of financial and moral rights.
On the other hand, according to the Article 70 of the Code, the person whose financial rights have been violated is able to claim compensation under the provisions governing torts as well, in case the person who committed the violation is at fault and the damages of the right holder cannot be covered by the compensation amount which can be sentenced up to three times as per the Article 68 of the Code.
When the regulations in the Code are evaluated, we see that the moral and financial rights holders of the works have the convenience on prohibiting the infringement that may occur regarding the work. Because it is clearly stated that no fault is sought in the lawsuits to be filed regarding the termination of the mentioned actions which violates the rights of the right holders. On the other hand, the person whose financial rights are damaged may demand compensation based on tortious acts if the infringer is at fault. Within this respect, it should be emphasized that in lawsuits to be filed based on moral and financial rights arising from the works, the fault of the people who caused the violation may affect strategy of the actions to be taken by the right holders.