Fikir ve sanat eserleri günümüz dünyasında ekonomik ve sosyal hayat açısından önemini her geçen gün artırmaktadır. İlgili eserlerin ekonomik ve sosyal hayata katılması genellikle devir işlemleri ile mümkündür. Pratik hayatta ise genellikle fikir ve sanat eserlerinin doğrudan devredilmesi yerine kullanım hakkı devredilmektedir. Lisans sözleşmesinin pratik hayattaki kullanım alanının genişliği, bu sözleşmenin niteliğinin ve sınırlarının iyi belirlenmesini gerektirmektedir. Zira ortaya çıkan sorunlar bu belirlemelere göre çözümlenir. Fikir ve sanat eserleri için yapılan lisans sözleşmelerinin birçok farklı türü ve bu türlerin doğurduğu farklı sonuçlar mevcuttur. Ayrıca öğretide, ilgili lisans sözleşmesinin hukuki niteliği ve taraflar açısından doğuracağı borçlar açısından tartışmalı birçok husus bulunmaktadır.
Anahtar Kelimeler: Lisans Sözleşmesi, Borçlandırıcı İşlem, Tasarrufî İşlem, Lisans Veren, Lisan Alan, Kullanım Hakkının Devri
Intellectual and artistic works are increasing their importance in terms of economic and social life in today’s world. The participation of the related works in economic and social life is generally possible through transfer procedures. In practical life, the right of use is usually transferred instead of the direct transfer of ideas and art works. The wide range of use of the license agreement in practical life requires the quality and limits of this agreement to be well defined. Because the problems that arise are resolved according to these determinations. There are many different types of licensing agreements for intellectual and artistic works and their consequences. In addition, in the doctrine, there are many controversial issues in terms of the legal nature of the relevant license agreement and the debts it will incur for the parties.
Key Words: License Agreement, Borrower Transaction, Saving Transaction, Licensor, Licensee, Transfer of Usage Right.
Not: Bu makale Tekirdağ Namık Kemal Üniversitesi (NKÜ) Hukuk Fakültesi Dergisi 2020/2 sayısında yayınlanmıştır.
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Intellectual and artistic works are protected by the intellectual rights legislations. Legitimate holders may permit third parties through license agreements to use their intellectual and artistic works nationwide or only in certain regions. In this article, the author analyse general provisions regarding the license agreements of intellectual and artistic works under the Law No. 5846 on Intellectual and Artistic Works (Turkish Copyright Act). Hence, this article comprises of six sections.
First section identifies different forms of license agreements that exist in Turkey. Since the principle of freedom of contract is accepted in Turkish legislation and licence agreements contain features of various different agreements, there is no specific regulation that defines or limits the types of licensing. Thus, license agreement is a sui generis type of contractual obligation. Turkish Copyright Act allows the creation of different types of license agreements.
Second section addresses the features and legal nature of license agreements. Under the Turkish Copyright Act, the general principle is that the person who actually creates a work is the author of that work. The “work made for hire” concept is not accepted. The right transfers should be made in writing, once the work is embodied, indicating, expressly, which rights are transferred, and under which conditions. As per Article 48 of the Turkish Copyright Act, in order to realize the assignment, the work should be physically created. Any agreement that relates to the transfer of rights arising from work that has not yet been created, or shall be completed in the future, shall be null and void. However, as per Article 50 of the Turkish Copyright Act, it is possible to take undertakings from the right owners for right transfers relating to future works. Therefore, before the work has been physically created, the right owner is able to undertake the assignment of the rights on the future work for a specified party. For a valid assignment, however, a separate deed of assignment must be signed once the work has been completed. Because of the practical difficulties created with this formalistic approach, Turkish Court of Appeals does not consider the transfer or license agreements that relate to future works to be null and void, but considers that these agreements should be accepted as undertakings from the right owners. In addition, because of the difficulties of this two-stage agreement process, the Court of Appeals also accepts that despite the lack of a second agreement, if the parties act in accordance with their undertakings, and if the work is completed as agreed, then the rights are deemed to be transferred. This view of the Court of Appeals is also supported by some scholars i.e Erbek, Arbek and Arkan.
Third section analyses the formality of establishing licence agreements. The establishment of license agreement for intellectual and artistic works is subject to special provisions stipulated in the Turkish Copyright Act. In cases where there is no provision here, it is subject to the general provisions of the Turkish Code of Obligations. Moral rights cannot be assigned as they exclusively belong to the right owner. On the other hand, material rights can be transferred; a written agreement signed by both parties is sufficient and further formalities require specific provisions on the rights of the seller (if purchased, from whom and which rights) and a clear indication of what kind of rights are assigned.
Forth section focuses on the parties of license agreement. A licensing agreement is a contract between a licensor and licensee in which the licensee gains access to the licensor’s intellectual property. The party providing the intellectual property is called the licensor while the party receiving the intellectual property is called the licensee. The licensee has the right to sublicense the intellectual property right that forms the basis of the licence agreement or transfer the licence to third parties with or without the prior consent of the licensor. Warranties must be included in relation to possible undertakings of the licensee. The method of protection, defence and enforcement of copyright can be covered in the agreement between the parties. The liability (or exclusion of liability) for invalidity or infringement of third parties’ could be protected by contractual provisions.
Fifth section addresses the rights and obligations of licensor and licensee. The main principle applicable here will be the freedom to contract. An agreement of the parties that is compliant with the mandatory provisions of Turkish Law will be valid and enforceable. Generally, the licensor grants authorization to the licensee to fully or party get benefit from its copyright. The copyright owner is usually responsible for maintaining the registration of a licensed IP right, including paying renewal and other applicable fees, regardless of the type of licence signed by the parties. A licensor that incurs damages or expenses can be indemnified by the licensee, provided that the licensee retains its rights of recourse under the licence. The extent of the indemnity that can be imposed on the licensee depends on the bargaining power of the parties.
Sixth section deals with the termination of license agreements. The provisions regarding the termination of license agreement regulated between the articles 50 and 59 of Turkish Copyright Act reflect the grounds upon when a licensor or a licensee is entitled to terminate an intellectual property licence in your Turkey.
Basic principal of the Turkish Copyright Act is to protect the intellectual and artistic works and it embraces provisions to protect their rights firmly. Hence, it should be concluded that Turkish Copyright Act is satisfactory in the context of freely setting up license agreements. Parties have freedom to contract. It is possible to license both the financial and moral rights of the author. The author can license the rights wholly or partially, on an exclusive or non-exclusive basis. A sub-licence is possible if the licensee has been expressly granted that power. On the other hand, Turkish Copyright Act could be criticized since it does not succeed in complying with the technological developments adequately as it requires many formalities to form a license agreement.