THE LAW NO 4630 FOR THE AMENDMENT OF CERTAIN ARTICLES OF THE LAW NUMBERED 5846 ON INTELLECTUAL AND ARTISTIC WORKS
Article 1.. Article 1of the Law dated 5.12.1951 and numbered 5840 on Intellectual and Artistic \Norks has been amended as shown below including the heading thereof.
Purpose Article 1- The purpose of this law is to determine and protect the moral and financial rights of authors creating intellectual and artistic works, performing artists performing or interpreting such works, phonogram producers enabling the first fixation of sounds, producers enabling thefirst fixation of films, andradio and television institutions, to regulate the conditionsfor benefiting from intellectual andartistic works, and to determine sanctions in case of any unfair benefiting in breach of the principles and procedures provided for. 11
Article 2.. The following articles have been added to come after Article 1 of the Lawnumbered 5846.
"Scope: Article 1a-This law consists of the moral and, financial rights of authors creating intellectual and artistic works, performing artists performing or interpreting such works) phonogram producers enabling the first fixation of sounds, producers enabling the first fixation of films) and radio and television institutionsr the principles and procedures fordisposition of such rights, trial procedures and sanctions! and the duties, powers and responsibilities of the Ministry ofCulture."
"Definitions Article 1b- Ofthe definitions referred to in this Law,
a) Work means any kind of intellectual and artistic creation bearing the characteristics of its author and which is considered scientific, literary, musical, artistic or cinematographic.
b) Author means a real person creating the work.
c) Adaptation means any work bearing the characteristics of the person who made the adaptation and which is produced benefiting from another work, butwhich is notindependent of the said work.
d) Comoilation means awork which is a result of acreative thought and the content of which is formed by selections and arranqernents, such asencyclopedias and anthologies provided that the rights on the original work are reserved.
e) Fixation means the process of recording the sounds or sound representations or sounds and images on a device in a way that they can be understood, reproduced and transmitted.
~ Phonogram means a sound-carrying physicaf medium on which sounds in a performance orother sounds or sound representations other than sound fixations in audio-visual works such ascinematographic works are fixed.
g) Computer Program means acomputer command system arranged in a way to ensure that acomputer system makes aspecial transaction or performs a duty! and the preparatory studies to ensure the formation and development ofsuch command system aswell.
h) Interface means program elements constituting the mutual interaction and connection between the hardware and software of-the computer.
i) Interooerability means the functional cooperation and interaction of the cornouter's program elements and the ability to use the information exch anged.
j) Affiliated Rights mean the rights held by the owners ofneighboring-rights and the film producers enabling the first fixation offilms on condition that the moral and financial rights of the author are notprejudiced.
k) Neighboring Rights mean the rights held by performing artists who interpret, introduce, narrate, sing, playa work and perform it in various ways in an original manner, producers ofphonograms enabling the first fixation of products ofperformance or other sounds, and radio and television institutions, based on the consent of itsauthor and on the condition that the moral and financial rights of the author are not prejudiced.
Article 3-Article 5of the Law Numbered 5846 on Intellectual and Artistic Works has been amended asshown below.
"IV. Cinematographic Works Article 5-Cinematographic works are a series of interrelated motion pictures with orwithout sound such asfilms ormovies asmay be of all aesthetic) scientific, instructive or technical natures or asdepicting news of the day which can be shown through electronic ormechanical means and similar devices rrespecfive of the material on which they are fixed. 1t
Article4-The- heading ofArticle 6 of the Law Numbered 5846 has been amended as"Adaptations and Compilations", and referring to the said article, the expression "and readable through adevice or in any other form" has been inserted to follow theexpression "are the result of inparagraph 11 of the first sub-article, and the expression "formed on condition that the rights of the author of the work from which it is benefited shall notbe prejudiced and" has been inserted at the beginning ofSub-articfe 2.
Article 5-The amended Article 8 of the Law Numbered 5846 has been amended as shown below.
itA) Description 1- In general.
Article 8- The author of a work is itscreator.
The owner of an adaptation and a compilation is the person who made the adaptation) provided that the rights of the author of the originaf work are duly safeguarded.
In the case ofcinematographic works, the director, the composer oforiginal music and the scenario and dialogue writers form ajoint authorship. Inthe case of cinematographic works which are made through the animation technique, the animator is also among the joint authors of the work.'
Article 6- The following sub-article hasbeen added toArticle 10of the Law Numbered 5846. Irlncase awork created by the contributions ofmore than one person constitutes an indivisible whole, the rights on the co-production shall beexercised byreal persons or legal entities bringing the owners of the work together, unless otherwise provided forunder a contract or the terms of service or under any lawin force during the time the work was created. The rights regarding cinematographic works are reserved."
Article 7- The following sub-article has been inserted atthe end ofArticle 13of the Law Numbered 5846.
"Authors ofcinematographic and musical works and producers-shall arrange for the record and registration of those works with aview to avoid the breach of the financial and moral rights they have, provide convenience in evidencing with respect todetermination of their authorship, and foJ/ow up the dispositions offinancial rights) without having apurpose ofestablishing rights. To this end) dispositions ofworks and financial rights can be kept under record upon request by the author of the work in the case ofother work groups as well. The principles and
-procedures regarding record and registration shall be laid down by the regulations to be executed by the Ministry ofCulture."
Article 8- The last sub-article ofArticle 14of the Law Numbered 5846 has been amended as shown below.
"lfthe nature of presentation topublic or publication of the work is such as to degrade the honour and reputation ofitsauthor, the author may prohibit the public introduction orpublication of the work whether inoriginal or adapted version even if the author may have granted written permission to others. Any renunciation of this authority to prohibit by contract is null andvoid. The indemnification right of the other party shall be reserved." .
Article 9- The lastsub-article ofArticle 16of the Law Numbered 5846 has been amended asshown below.
"The author may prohibit any modifications that are derogatory tothe nature and character ofhiswork or prejudicial to hishonour and reputation, even if hehas given his unconditional written approval. Any renunciation ofthis authority toprohibit bycontract is null and void."
Article 10- The first sub-article of the amended Article 17of the Law Numbered 5846 has been amended as shown below.
"The author may claim where necessary from the owner and possessor of the original work the right to benefit from the originals of the works created in the handwriting ofwriters and composers of such kind referred to in Article 3 and in paragraph 1. ofArticle 2, andthe artistic works referred to in paragraphs 1 and 2 ofArticle 4 for a temporary period of time, provided that the conditions of protection are fulfilled. Such right of the author shall be stated in auction and sales catalogues or related documents by persons involved in trading of such works to those purchasing or acquiring the work."
Article 11-Article 18of the Law Numbered 5846 has been amended asshown below including the upper heading thereof and the succeeding headings have been arranged to occuraccordingly.
"III. Exercise of Rights a) In general,
Article 18-The authority toexercise the financial rights shall exclusively restwith the author.
Unless construed otherwise from the specific contract or the nature of thebusiness between them, the rights on the works created by the officials, employees and workers during the time they were in charge shall be exercised by those who employ or appoint them. This rule shall also beapplicable to the organs of the legal entities.
The producer or publisher of awork may exercise the financial rights only according to the contract to be concluded with the author of the same."
Article 12-Sub-article two of the amended Article 19of the Law Numbered 5846 hasbeen amended as shown below.
"After the death of the author, the persons enumerated in the preceding sub-article may exercise in their own name the rights conferred upon the author according to the third sub-articles ofArticles 14, 15and 16 for aperiod of70years after the death of the auihor.'
Article 13-The firstsub-article of the amended Article 22of the Law Numbered 5846 has been amended as shown below.
"The right to reproduce the original or copies ofa work wholly or inpart, in anymanner or through any method, whether directly or indirectly and whether temporarily orpermanently belongs exclusively to the aulhor.'
Article 14-The amended Article 23of the Law Numbered 5846 has been amended as shown below.
Ire) Right of Dissemination Article 23- The right to rent out, lend, put upforsale ordistribute by other means the original or the reproduced copies of awork belongs exclusively to the author.
The right tobring the copies reproduced abroad upon the permission of the author to the country and to make benefit from them by way ofdissemination belongs exclusively to the author. The copies reproduced abroad cannot beimported by any means whatsoever without the permission ofthe author and/or the owner of the dissemination right holding the permission of the author. Where specified copies of the work are first placed for sale ordistributed within the territory asa result of the owner's exercising his right ofdissemination within the territory, further re-sale subsequent tosuch transfer ofproperty shall not infringe the aunor's dissemination rights, provided that the rights ofrenting and public lending shall remain with the author.
The dissemination ofawork or its reproduced copies by way of rental or lending may not cause an extensive copying of the work in a manner as to be prejudicial to the reproduction right of the author. The principles and procedures relating to the application of this article shall be laid down by a regulations tobe executed bythe Ministry ofCulture.'
Article 15-Article 25 of the Law Numbered 5846 has been amended together with itsheading asshown below.
lid) Right of Public Transmission Through Devices Enabling Transmission of Signs, Sounds and/or Images:
Article 25- The right to broadcast the original or the copies reproduced from the Qriginal through institutions making broadcasts by wire orover the airsuch asradio-television, satellite and cable or through instruments enabling transmission of signs, sounds and/or images including digital transmission and to transmit such broadcasted works publicly by way of rebroadcasting the same through other broadcasting institutions benefiting from the broadcasts ofthe aforementioned institutions, belongs exclusively to the author.
The author also has the right to grant authorization fororprohibit the sale of the original or reproduced copies of his work through instruments, whether bycable or over the air, or their public distribution orpresentation in any other manner and their pubfic transmission byproviding access to his work at the time and place designated by real persons. .
Distribution and presentation ofthe works through public transmission as laid down by this article shall not infringe author's dissemination riqht.'
Article 16-The following sentence has been added tocome after the first sub-article of the amended Article 27 of the Law Numbered 5846.
"In case ofco-authors, this term will expire upon the lapse of70years from the death of the last surviving author."
Article 17-Article 33of the Law Numbered 5846 has been amended as shown below.
1'3. Freedom of Presentation
Article 33-The presentation ofapublished work in all educational and instructional institutions for the purposes of face-to-face education and instruction with nointention ofprofit whether directly or indirectly is permitted provided that the name of the author and the title of the work are mentioned in the usual manner,"
Article 18-The following third sub-article has been added tocome after the second sub-article of the amended Article 34of the Law Numbered 5846. ICIt is possible to quote from published musical, scientific and literary works and publicly exhibited art works, only upon the permission ofthe author, inorder tocreate selections and compilations, which are made for purposes other than education and instruction."
Article 19-Article 37 of the Law Numbered 5846 has been amended as shown below.
IC7. News
Article 37- It is possible to record on devices enabling the transmission ofsigns, sounds and/or images certain passages of intellectual and artistic works related to current events) provided that they have the nature of news and that they donot exceed the scope of giving information. The reproduction, dissemination, representation or broadcast through instruments such asradio and television of such passages taken in this manner are permitted. However! this right may notbeexercised in a manner asprejudicial to the legal interests of the owner of right or as to be inconsistent with normal exploitation of the work.'
Article20- The amended Article 41 of the Law Numbered 5846 has been amended together with itsheading as shown below.
114. The Use of Sign, Sound and/orImage Carriers on PublicPremises:
Article 41- It is obligatory to affix banderoles on sign, sound and/or image carriers onwhich intellectual and artistic works are recorded forperformance atpublic premises having commercial purposes and whether ornotcharging a fee for admission.
After acontract granting permission ofperformance hasbeen concluded between the user and the authors or the concerned professional association and after the charges for banderoles have been paid, banderoles shall be provided by the Ministry ofCulture or the concerned Professional Association.
In case the sign, sound and/or picture carriers donotbear banderoles relating to usage atpublic premises, this shall constitute infringement of financial rights. JJ
Article 21-The first! second and last sub-articles of the amended Article 42 of theLaw Numbered 5846 have been amended asfollows. IfAuthors and right owners affiliated with the rights of authors may establish more than one professional association within the fields to be determined in accordance with the by-laws and uniform statutes drawn upby the Ministry ofCulture and approved bytheCouncil of Ministers in order toprotect the common benefits of their members! to ensure the collection offees and distribution of same to the right owners. In the case ofauthors or performing artists, real persons) who have membership qualifications and are fourtimes more than the number of principle members of the compulsory organs; and in the case of radio-television institutions real persons or legal entities who have membership qualifications and are two times more than the number of the principle members of such organs shall have to apply to the ministry inorder toobtain a permit required foroperation asaprofessional association. Professional associations shaH operate within the field they are founded in after obtaining such permit."
/tIn order to found another professional association within the same field, real persons or legal entities who have membership qualifications and are 1/3of the total number of members of the professional association founded in the same field with the highest number of members shall apply to the Ministry in order toobtain a permit for activity, provided that such number shall notbe less than the number of aforementioned founders. The said professional association shall operate incase the Ministry deems such application suitable and gives the aforesaid permit. Each professional association may work through opening branches in accordance with its needs. A federation might beestablished byminimum two professional associations founded in the same field within the framework of the by-laws and uniform statutes drawn upbythe Ministry of Culture. However, it is not possible toestablish several federations in the same field."
"The rights of authors and right owners affiliated with the rights of authors granted with this Law shall be monitored by the professional associations founded pursuant to this Article to the exclusion of all other associations, societies and similar institutions. The matters such as membership, number of founders and total number of members in this article are also necessary for the professional associations established prior to this Law comes into force. All professional associations must be in parallel to the principles in this article within six months after the Law comes into force. Professional associations that do not meet this condition within this period shall be considered abolished automatically."
Article22- The amended Article 43 of the Law Numbered 5846 has been amended together with itsheading as shown below.
1'2. Payments Relating to theIntellectual andArtistic Works Broadcasted and/orTransmitted Through Media suchasRadio and Television:
Article 43- Radio and television institutions have to obtain prior permission of the authors relating to works performed on stage from which they shall make benefit for their broadcasts.
Radio and television institutions and satellite and cable broadcasting institutions and those institutions broadcasting by utilizing from the technical means whether existing or to be discovered in the future shall be obliged inrespect ofthe interlectual and artistic works) other than stage works used bythem in their broadcasting, to obtain permission byexecuting awritten collective agreement conforming to Article 52 with the authors and/or right owners affiliated with authors orthe professional associations which they are affiliated with and toeffect the payment for such usage tothe authors and/or affiliated right owners or the professional associations which they are affiliated with. The procedures and principles applicable tosuch usage shaH be laid down by aregulations to beexecuted by the Ministry ofCulture through obtaining the opinion of Supreme Board for Radio and Television and the respective professional associatons.'
Article 23- The second and third sub-articles of the amended Article 44of the Law Numbered 5846 have been amended as shown below.
"Real persons and legal entities producing or importing forcommercial purposes all kinds of empty video cassettes, sound cassettes, computer diskettes and carriers such as CDs, DVDs and all types of technical devices enabling reproduction of intellectual and artistic works must deposit to aspecial account tobe opened in anational bank in the name of the Ministry ofCulture) the amount obtained atthe end of the month after deducting the portion tobefixed by. the Council of Ministers not exceeding three percent over the production cost orimportation cost, within the first half of the following month atthe latest."
'The Ministry shall use the amount deposited inthis account for the reinforcement of the intellectual property system and in activities carried outfor purposes ofprotection and maintenance of the cultural heritage both in the country and abroad. The procedures and principles related todistribution and usage ofsuch amounts shall be laid down by a regulations to be executed by the Ministry' of Culture."
Article 24-Sub-article two ofArticle 47of the Law Numbered 5846 has been amended asshown below.
"In order for adecision to be taken in this respect, the work must be created inTurkey orbyTurkish nationals outside ofTurkey, and also, published copies ofthe work must have been unavailable fortwo years and itmust be obvious that the right owner will not publish any new edition ofthe work within a reasonable period.'
Article 25- Sub-article one of the amended Article 68of the Law Numbered 5846 has been amended asshown below.
"If the work has been translated without the aulhor's consent, orpublished outside the scope of the contract or in excess of the number indicated in the contract, oradapted in some other way orbroadcast or performed by radio ortelevision or similar media, the author whose consent has not been obtained may claim for up to maximum three times the amount which hemight have obtained in the case ofexecution of acontract or which is paid for the like works used orthe amount ofdamages sustained thereby according to the current value. The opinion of the concerned professional associations shall be taken inpriority asthe basis in the determination of the like price."
Article 26-Paragraph (5) has been inserted into Sub-article one of the amended Article 71 of the Law Numbered 5846 and the last Sub-article ofthe same has been amended as shown below,
1t5. Where any person changes awork without the written consent of itsauihor,'
"a prison sentence from two year to six years and a heavy fine from 50 billion liras to 150 billion Iiras may be mposed.'
Article27- Paragraphs (4), (5) and (6) of Sub-article one of the amended Article 72 of the Law Numbered 5846 have been amended asshown below, and the last Sub-article of the same has been amended as shown below.
('Where aperson 4. performs a work orexhibits such work on public premises ororganizes such performance ordisseminates the same bymeans ofdevices enabling transmission of all types ofsigns, sounds and/or images, including digital transmission or acts asintermediary for the dissemination thereof; 5. rents out a work or lends it topublic; 6. importing copies whether by legal or illegal means and places incommercial circulation in any manner whatsoever and uses such copies;
aprison sentence from four years to six years and a heavy fine from 50billion liras to 150 billion liras may be imposed."
Article28-The last Sub-article of the amended Article 73of the Law Numbered 5846 has been amended as shown below.
'ln respect of those, a prison sentence from two years to four years and aheavy fine from 10 billion liras to 50 billion liras may beirrposed.'
Article29-Article 75of the Law Numbered 5846 has been amended together with its heading asshown below.
trlll_ Prosecution andRecidivism Article 75- Prosecution for offenses enumerated inArticles 71, 72 and 73is conditional on filing of acomplaint.
Parties who have aright to make acomplaint other than those who have suffered from the infringement are; 1. In cases specified inparagraph 4 ofArticle 71 foracts inviolation of the obligation to indicate a source in
conformity with Article 35, the Ministry ofNational Education and of Culture; 2. In cases specified inparagraph 4 ofArticle 71 foracts inviolation of the obligation to indicate a source in
conformity with Article 36) the Ministry ofCulture, the General Directorate ofPress-Publication and institutions representing the Turkish press;
3. In cases provided under sub-articles three ofArticles 14and 16within the framework of the last sub-article of Article 19the Ministry ofCulture;
4. The Professional Associations according to their fields of activity.
In case of infringement ofthe rights ofauthors, rights owners affiliated with the rights ofauthors orother right owners) upon the application of those who have the right to make a complaint, the Public Prosecutorship ofthe province, where the infringement or the consequences thereof occurred, may demand before acompetent court to close down the place, where unauthorized reproduction was performed and to seize the copies orpublications thereat and further to take the technical equipment used in the infringing act under seal.
Where delay is deemed inadvisable) the Public Prosecutor may directly adopt a resolution forseizure and taking under seal, and submit the same to the competent court within three days. The right owners may file an application accompanied by documents evidencing their rights with the Public Prosecutorship within aperiod of6 months as of the date when the infringement and offender come to their attention provided that the offense remains within the period of limitation of actions. The trial procedure provided in the Law Numbered 3005 on the Trial Procedure ofFlagrans Crimen shall beapplicable to such offense irrespective of the conditions regarding location as provided under paragraph (A) ofArticle 1 and time as provided under Article 4 of the said Law."
Ifany person on whom there isa finalized criminal sentence due to the offenses stated in this Law commits the same offense once again within a period of two years, the punishment tobe imposed byreason of the new offense shall be increasedby one fold. 11 •
Article 30-Article 76of the Law Numbered 5846 has been amended asfollows including the heading and the first sub-article thereof and the following sub-article has been added at the end of the said Article.
Ill_ Competence andPresumptiott 'ln connection with legal actions arising from legal relations established by the present law! Specialized Courts to be established by the Ministry of Justice are competent irrespective of the amount at issue and the penalty provided by law. Until the Specialized Courts are established and commence the trial proceedings, whether the Civil Court of First Instance or the Criminal Court of First Instance shall be designated asthe Specialized Court and the jurisdiction of such courts are determined by the Supreme Board of Judges and Public Prosecutors upon the request of the Ministry of Jusfice.'
'lnconnection with legal actions to be filed within the framework of this law, incase the plaintiff submits evidences sufficient to form strong opinion about the truth of the claim, the court may request those who are using the works, phonograms, performances] films and broadcasts being protected topresent the written contracts indicating that they have obtained the permissions and authorizations provided by law and also the lists of all works, phonograms, performances, films and broadcasts they have benefited from. Failure topresent the documents and/or lists mentioned above shall constitute presumption in respect ofunfair usage of all works, phonograms, performances, films and broadcasts."
Article 31- The amended Article 77of the Law Numbered 5846 hasbeen amended together with itsheading as shown below.
"II. Interlocutory Injunction and Temporary Seizure by the Customs Article 77- Where it is deemed essential and allegations presented appear highly probable, the Court may! in order to prevent substantial damage orsudden danger or a fait accompli} or forany other reason) direct the other side! before or after commencement of the legal action and on demand by the person whose rights recognized by the present Law are to beprejudiced or endangered or those who are authorized to file acomplaint, to door refrain from doing acertain act or toclose down or open the place where the act is performed and the Court may also issue an interlocutory injunction fortemporary seizure of reproduced copies ofawork or of the moulds and other analogous devices forreproduction thereof. The decision shall specify that failure tocomply with the order shall result in the penalties setoutinArticle 343 of the Execution and Bankrupt Law.
The provisions of the Article 57of the Customs Law Numbered 4458 shall apply at the time of import or export of copies necessitating a sanction due to the possibility ofconstitution of infringement of the rights on. the work.
The transactions relating toseizure ofcopies necessitating a sanction due to the possibility ofconstitution of infringement of rights on the work bycustoms authorities atthe time of import orexport shall begoverned by the related provisions of the Customs Requlatons.'
Article 32-The amended Article 80ofthe Law Numbered 5846 has been amended including the upper heading thereof as shown below.
teA) Rights Affiliated with the Rights of the Authors and Prevention of Infringement
1- Rights affiliated with the Rights of the Authors Article 80- The rights affiliated with the rights of the author are asfollows:
!. Neighboring rights to the rights of the author
Performing artists who interpret, introduce, narrate, sing, playa work and perform it invarious ways in an original manner! and producers of phonograms enabling the firstfixation of products of performance or other sounds, and radio and television institutions have the following neighboring rights, based on the consent of itsauthor and on the condition that the moral and financial rights of the author are notprejudiced.
A. Performing Artists have the following rights (1) Performing artists shall be entitled to request to be introduced as the owners of their performances and request the prevention of corruption and falsification of their performances in a way to degrade their reputation, independent of financial rights and even after the transfer of such rights, except required by application conditions related to their fixed performances.
(2) A performing artist who performs awork in an original manner by the permission of itsauthor shall have the exclusive right togrant authorization foror to prohibit the exploitation byway of fixation ofsuch performance, reproduction of such fixation, sale, distribution, renting outand lending and public transmission and re- transmission and presentation by means of instruments enabling transmission of signs, sounds and/or images.
(3) A performing artist shaH beentitled to the right togrant authorization for or toprohibit the distribution, whether through sale or any other way, of theoriginal or the reproduced copies ofhisfixed performances which have not yet been placed fordomestic sale or distribution in any other way.
(4) A performing artist hasalso the right togrant authorization foror toprohibit the sale of the original or reproduced copies ofhisfixed performance through lnsfruments, whether bycable or over the air, or their public distribution orpresentation in any other manner and their public transmission byproviding access of the real persons to hisperformance atthe time and place designated by them. Distribution and presentation of performances through public transmission shall not infringe performing arfistsdissemination right.
(5) Performing artists may transfer these rights to a producer bycontract and for reasonable remuneration. (6) Where the performance is carried outby an orchestra, a chorus or a theatrical group, the permission of only the conductor in case oforchestra or chorus or of the director in case of theatrical group issufficient.
(7) In respect of the performances carried outasa result of the action of an entrepreneur and based on a contract, the permission of the entrepreneur is also required.
B. Producers ofphonoqrarns enabling the firstfixation ofproducts ofperformance or other sounds are entitled with the following rights after taking over the authorization to exercise financial rights from the author and the performing artist.
(1) The right to grant authorization for or toprohibit the reproduction, distribution, sale} renting outand public lending of the fixation whether directly or indirectly, which fixation is carried outupon the permission of its author and the performing artist, shalf exclusively belong to the phonogram- producer. The producers shall have the exclusive right to grant authorization for the public transmission and re-transmission offixations by means of instruments enabling transmission ot-signs, sounds and/or images.
(2) A phonogram producer shall be entitled to the right togrant authorization for or to prohibit the distribution, whether through sale or any other waYl of the original or thereproduced copies ofhisfixations which have notyet been placed fordomestic sale ordistribution in any other way.
(3) A phonogram producer has also the right togrant authorization for or toprohibit the sale of the fixations of the performances through instruments, whether by cable or over the air, or their public distribution or presentation in any other manner and their public transmission by providing access of the real persons to the fixations atthe time and place designated by them. Distribution and presentation of fixations through public transmission shall not infringe producer's dissemination right.
C. The Radio-Television Institutions shaH be entitJed to the right to grant auihorizatlon foror toprohibit fixation of their broadcasts] reproduction of those fixations, rebroadcast bymeans of all types of instruments, whether by cable or over the air) and display of the same atplaces charging a fee for admission.
2. Producers of films enabling the first fixation of films areenUtJed with the following rights after taking over the authorization toexercise financial rights from the author and the performing artist.
(1) The right to grant authorization foror toprohibit the reproduction) distribution] sale, renting outand public lending of the fixation whether directly or inoireclly, which fixation is carried outupon the permission of its author and the performing artist, shall exclusively belong to the film producer. The producers shall have the exclusive right to grant authorization for the public transmission and re-transmission of fixations by means of instruments enabling transmission of signs] sounds and/or images.
(2) A film producer shaH beentitled to the right to grant authorization for or to prohibit the distribution, whether through sale or any other way, of the original or the reproduced copies of film fixations which have notyetbeen placed for domestic sale or distribution in any other way.
(3) A film producer also hasthe right togrant authorization foror to prohibit the sale of film fixations through instruments) whether by cable or over the air, or their public distribution or presentation in any other manner and their public transmission byproviding access of the real persons to the fixations at the time andplace designated by them. Distribution and presentation of fixations through public transmission shall notinfringe producer's dissemination right.
In case ofpublic transmission of performances fixed onphonograms and films by any means whatsoever, those persons using them are liable to pay asuitable amount to the authors aswell asthe performing artists and producers or the professional associations of the related field.
A real person or legal entity whose name is cited in the usual manner in a cinematographic work is considered as the producer of the said cinematographic work unless there is evidence otherwise.
After the co-authors of the cinematographic works transfer their financial rights to the producer enabling the first fixation offilms, they cannot object to the dubbing or subtitring of the film unless otherwise is provided for or unless there is aspecial provision in the contract.
The author of the musical work maintains the right tobroadcast and perform hiswork provided that the provisions of lhe contract entered into between the producer enabling the firstfixation of films are reserved.
The permissions granted byneighboring right owners and the producers enabling the firstfixation of films shall have to be inwriting.
The written permission of the neighboring right owner and the producer is not required under the following conditions:
1.'Performance and presentation to the public of intellectual and artistic works forpurposes of public order, education and instruction] scientific research or news and without aiming at profit;
2. The reproduction of intellectual and artistic works and radio television programs for personal use without aiming topublish and to profit;
3. Temporary fixations with short duration made by radio and television institutions on their own and for their own use in broadcasts;
4. The cases specified in Articles 30J 321 34, 35J 43, 46 and 47of the present Law.
Such application however may in no way prejudice unjustfy the lawful interests of the rights owner and may not conflict with normal exploitation of the work.
Like authors, those owners of rights affiliated 'with the rights ofthe authors are entitled to exercise rights ofAction' to Stop or Prevent Infringement and for Indemnity.
Those who infringe the rights ofowners ofaffiliated rights shall be subjected to a prison sentence from two years to four years and aheavy fine from 10billion liras to 50 billion lras.'
Article33- The amended Article 81 of the Law Numbered 5846 has been amended as shown below.
"/I. Prevention of Infringement of Rights Article 81- /tisobligatory to affix banderoles on non-serial publications and the reproduced copies ofthe musical and cinematographic works. Furthermore, it isobligatory to affix banderoles on the reproduced copies ofother works suitable for easy copyinq, upon the request of the author or the right owner.
Banderoles shall be arranged tobe printed and sold by the Ministry ofCulture. The Ministry may also carry out banderole sale through the Professional Associations. Banderole revenues shall be deposited inan account to be established with anational bank forand on behalf of the Ministry. The revenues shall be disposed offor activities aiming atreinforcing the intellectual property system and the protection and maintenance of the cultural entities both in the country and abroad
In order to obtain banderoles forawork, the person asking forbanderoles should fill in awritten engagement evidencing that he is the legal right owner. Application ismade with other documents and deeds to be determined by the Ministry ofCulture. Upon such applicaton, banderoles are provided within ten days without any further transactions.
The cases to constitute infringement in relation to obtaining and using banderoles are as follows:
1. To reproduce, sell, distribute, rent out, lend) present topublic orplace in commercial circulation in any manner whatsoever oruse orexploit in any other manner, without obtaining banderoles] awork forwhich banderoles are required pursuant to this Law; 2. To produce false banderoles] to affix them on copies ofworks, to make benefit from such false banderoles for commercial purposes in any manner whatsoever; 3. To obtain banderoles) although notqualified to obtain the same pursuant to this law and the related regulations, by issuing false deeds ordocuments orby misleading in any manner the Ministry ofCulture or the institutions assigned bythe Ministry; 4. To affix banderoles on copies reproduced without the permission of the author or to make benefit from such copies forcommercial purposes or todisseminate these copies gratuitously in away to violate the rights of the author; 5. To use banderoles provided exclusively for awork for another work; 6. To disseminate orexploit in any other manner the copies ofworks, gratuitously ornon-gratuitously, without affixing the banderoles obtained in accordance with this Law and the related regulations, on such copies in the specified way.
Acommission to be formed by provincial governors atthe provinces from the representatives of the Ministries of Interior, Finance and Culture, professional associations ofauthors and/or right owners affiliated with authors may always supervise whether banderole is affixed or not on works mentioned in sub-article two and required tobear banderole. In cases of infringement mentioned in this article, the police authorities) upon the application of authors) affiliated right owners orother right owners to the Commission or upon the appllcaton made ex-offico by the Commission to take action and confiscate such copies] publications and any or all devices used in reproduction and other evidences) and after safe-keeping the immovable ones they submit the evidences to the Public Prosecutorship together with the notice ofaccusal. The Public Prosecutorship may demand before a competent court within three days to close down the place) where unauthorized reproduction was performed and
to seize the copies orpublications thereat and further to take the technical equipment used in the infringing act under seal and sell the same.
The procedures and principles regarding the application of the issues indicated in this article and 'the formation of the Commission shall be laid down by a regulations tobeexecuted by the Ministry ofCulture within 6 months as of the date of publication of this Law.
Those committing one of the above-mentioned infringement acts shall be subjected to a prison sentence from four years to six years and aheavy fine from 50 billion liras to 150 billion liras.
Article 34-Referring to the amended Article 82ofthe Law Numbered 5846, the heading of the said article has been amended as "The Scope and Terms ofRights Affiliated with the Rights of the Authors', the phrase ICon sound carriers' inparagraph (2) of the first sub-article has been amended as'onphonograms orfirst film fixations", the term "on a sound carrier' as"on a phonogram or a ftlmJl, and the phrase "sound carriers" in the first sentence of the second sub-article has been amended as'phonoqrarns and first film fixations', the punctuation mark "/'at the end ofparagraph (1) has been amended as"or" and the phrase "on sound carriers' inparagraph (2) has been amended as"on phonograms and filmsn and the punctuation mark !I," at the end ofparagraph (1) of sub-article three has been amended as"orr and the phrase "with neighboring rightsU insub-article four has been amended as"with affiliated rightsIJ and sub-articles five and six of the same Article have been amended as shown below.
"The term of rights ofperforming artists shall commence with the date when the first fixation of performance is made and continue for 70years. If the performance has notyetbeen fixed, such period shaH commence with the date ofthe performance first becoming public.
The term of rights ofproducers is 70years, commencing with the date of the first fixation being made."
Article 35-Additional Article 2 of the Law Numbered 5846 has been amended as shown below.
IfAdditional Article 2-The provisions governing the terms ofprotection in the present Law are, during the time the amendment made inthis Article hastaken effect, applicable to
1-aJl works, fixed performances and phonograms available inTurkey and produced byauthors and right owners affiliated with the rights of authors who are citizens ofRepublic of Turkey; 2-foreign works, fixed performances and phonograms which have been produced inother countries party to international contracts and agreements which Turkey is also a party to and which have notbecome public since the term ofprotection has notexpired in those countries.
Those who hold the possession of the legal copies ofworks, fixed performances and phonograms which are under protection as a result. of application of Sub-article one, may sell ordispose ofsuch copies until the end of six months following the date on which the law takes effect, without the necessity of any written permission.
However, the exercise of rights with respect to works, fixed performances and phonograms granted toauthors and other right owners within the framework of the present lawshall be subject to the permission of the authors or affiliated right owners.
The provisions of the present law with respect to ownership ofcinematographic works are applicable to cinematographic works the production ofwhich has started after 12.06.1995 when the Law Numbered 4110 entered into force."
Article 36- The following items regarding the Law Numbered 5846 and dated 05.12.1951 on Intellectual and Artistic Works have been repealed:
a) under Sub-article one ofArticle 24, the expression lithe original or adaptation of a work" following the expression 'from awork',
b) amended Article 28, c) amended Article 29, d) under Sub-article one of the amended Article 38, the expression "publication orr and sub-article two, e) amended Article 39) f) lastSub-article ofArticle 57) g) paragraph (4) of the amended Article 73.
Article 37- The following Supplementary Article 4has been added to the Lawnumbered 5846.
"Supplementary Article 4- The information placed onthe copies of the work or seen during the public presentation ofthe work in relation to the work, the author, owner of any of the rights on thework or the terms and conditions regarding the usage of the work, and the figures and codes related tosuch information cannot beremoved or amended without authorization. The originals or the copies of the works whose information or figures and codes containing such information are amended or removed in an unauthorized manner cannot bedistributed, imported inorder to bedistributed) published or transmitted to the public.
The provisions of the aforementioned sub-article shaH be applicable tophonograms and performances fixed on phonograms aswell.
The procedures and principles regarding the application of the issues setforth in this article shall be laid down by a regulations tobe executed bythe Ministry ofCulture.
Those committing the acts mentioned in the firstsub-article, in an unauthorized manner, on purpose shall be subject to the provisions of the last sub-article of Article 73of this Law.
Article 38-The following supplementary article 5 hasbeen added to the Law numbered 5846.
IISuppfementary Article 5- The reproduced intellectual and artistic works being protected within the scope of the present Law are compiled bythe Ministry of Culture with the purpose ofprotection and maintenance ofcultural heritage of intellectual and artistic works.
The real persons or legal entities who reproduce intellectual and artistic works and are authors or right owners should submit forcompilation at least five copies of the reproduced works within onemonth as of the date of reproduction.
The procedures and principles regarding the works tobeccrnpllec, those who shall submit such works and their responsibilities) the units tocarry outcompilation transactions, the number of copies tobecompiled, the institutions where such copies shall be submitted and other transactions related to the compilation shall be latd down by a regulations to beexecuted bythe Ministry of Culture."
Those who fall against the provisions of this article and fail to submit the works required tobecompiled within due time shall besubjected toa fine of5 billion Turkish Liras. The fines stipulated under this article shall be imposed by the Provincial Culture Manager of the Ministry ofCulture.
The fine must be paid within 10days as of the date ofannouncement of the minutes. The amount of the fine not paid within 10days shall bemultiplied and the term ofpayment shall be extended, and the fines notpaid within such extended period shall betripled. The fact that the fine has been paid shall not repeal the liability to submit the copies of reproduced works.
The fines shall beduly notified to those concerned. An objection might be made before the competent Criminal Court of First Instance within 10days as of the date ofnotification. The transactions shall notcease upon the objection made. The resolutions adopted by court upon the objection shan be final. When it is not deemed compulsory, the objection shall befinalized within a short term after the documents are examined. The fines imposed in accordance with this article shall becollected pursuant to the provisions of the Law on the Collection Procedures of Public Receivables.
The amount collected as such shall be transferred to the special account indicated under the second sub-article ofthe Amended Article 44of the present Law. .
Article 39-The following supplementary article has been added to the Law numbered 5846. 'Supplementary Article 6- The expressions 'Cullure and Tourisrn' as referred to in the present Law have been amended as "Culturel •
Article 40- The present Law shaH take effect as ofthe date ofpublication.
Article 41- The Council of Ministers isentrusted with the execution ofthe present Law.