Events
The applicant took over the printing, reproduction and distribution rights of the work titled “Mehmet Akif Ersoy and Safahat – Full Text and 54 Poems Out of Safahat”, which was created by M.E.D. by processing Mehmet Akif Ersoy’s poems, for 99 years on 4/1/1997 and started to publish the said work after this date. The bookstore, which has held the financial rights of the work titled “Safahat”, which contains the poems of Mehmet Akif Ersoy, since 1943, in accordance with the contract concluded with his heirs, filed a lawsuit for compensation against the applicant on 6/4/2006, claiming that the applicant violated its financial rights with the work he published. The Court found the provision of the provisional Article 2 of the Law No. 5846 on Intellectual and Artistic Works, which entered into force on 1/1/1952, applicable in the case and concluded that the permission of the owner of the financial rights must be obtained in case of the re-publication of the works whose publication process was completed at the time the amendment made by Law No. 4110 entered into force. The Court concluded that the publication and offering for sale of the work in question was unlawful as the authorisation of the bookstore, which had taken over the financial rights of Mehmet Akif Ersoy’s poems from his heirs, had not been obtained and awarded 25.000 TL pecuniary damages against the applicant. The applicant appealed against this judgement. The Court of Cassation upheld the judgement by correcting it in terms of judicial expenses and rejected the request for correction of the judgement.
Allegations
The applicant claimed that his right to property was violated as the publication of his work was deemed unlawful.
Assessment of the Court
The main issue in the concrete case is whether the work, which was created by processing the poems of Mehmet Akif Ersoy after the expiry of the 50-year protection period in accordance with the legislation in force in 1987, will become illegal due to the increase of the protection period to 70 years with the Law No. 4110, which entered into force on 12/6/1995.
First of all, it should be stated that it is not reasonable to apply the provisional article 2, which contains a provision regarding the vested rights that were established before the Law No. 5846, which entered into force on 1/1/1952, in terms of the amendment made by the Law No. 4110, which entered into force on 12/6/1995. Provisional provisions regulate the position of the legal situations that were formed according to the legislation before the legal amendments against the new regulation. Therefore, temporary provisions have an effect limited to the transition period for which they are envisaged. In this context, it is clear that the scope of application of the provisional article 2, which was issued in order to regulate the status of the acquired rights that occurred before 1/1/1952, when the Law No. 5846 entered into force, is limited to the events before 1/1/1952. Therefore, it is an unforeseeable interpretation for the court to analyse whether the work in question, which was published after this date, falls within the scope of the protection of Law No. 5846 by applying the provisional Article 2.
Since Law No. 4110 does not provide for a transitional provision in relation to works created before the entry into force of the said Law, the issue of whether the work falls within the scope of the protection of Law No. 5846 must be resolved in accordance with the general provisions and in the light of the rule of law principle.
The work in question, in which the applicant took over the financial rights and in which the poems of Mehmet Akif Ersoy are covered, was created in 1987 and has been made available to the public since the said date. Therefore, the work in dispute was made public in accordance with the law before 12/6/1995 when Law No. 4110 entered into force. In this case, it is clear that the work in question falls within the scope of the protection of the rights regulated in Law No. 5846 and that the financial rights in Law No. 5846 have become property for the author or the person who transfers them.
Although the protection period of Mehmet Akif Ersoy’s poems has been extended until 1/1/2007 as a result of the amendment made by Law No. 4110, which entered into force later, this does not automatically exclude the works created by processing Mehmet Akif Ersoy’s poems from the scope of the protection of Law No. 5846. Since there is no provision explicitly abolishing the financial rights regarding the works publicised before the effective date of Law No. 4110, it is not an interpretation that is compatible with the principle of the rule of law to conclude that the applicant’s rights have expired based on the revival of the rights of Mehmet Akif Ersoy’s heirs. In this case, it cannot be concluded that the legal rules applied in the dispute have been interpreted in the light of the rule of law principle and by observing the principle of foreseeability.
Undoubtedly, if there is a clear regulation in the law that eliminates the applicant’s right, it should also be examined whether this ensures the fair balance between the interests of the applicant and the bookstore. However, the fact that the legal rules applied to the dispute do not fulfil the foreseeability criterion is deemed sufficient to conclude that an excessive and extraordinary burden has been imposed on the applicant.
In this case, the award of compensation against the applicant for publishing and offering the work in question for sale led to a violation of the positive obligations of the state.
The Constitutional Court decided that the right to property was violated for the reasons explained.
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