Judgment of the Constitutional Court, Case No 2010/73, Decision No 2011/176 of 29 January 2011; published in the Official Gazette, Issue No 28236 17 March 2010
Journal of Intellectual Property Law & Practice (2012), doi: 10.1093/jiplp/jps126, first published online: August 24, 2012
While the notion of authorship of cinematographic works has undergone changes since 1995 through subsequent amendments to the Law on Intellectual and Artistic Works of 1951, the retrospective implementation of an amendment in 2001 for the benefit of dialogue writers and animators has been ruled unconstitutional on the grounds that it prejudiced the vested rights of ownership of those joint authors as determined by a previous amendment to the law in 1995.
Having replaced the Copyright Law of 1910 that dated from the Ottoman Empire, Law No 5846 on Intellectual and Artistic Works of 1951 is the current legislation which regulates copyright and related rights in Turkey. This was the first Copyright Act following the foundation of the Turkish Republic in 1923. The law, which has since been amended on eight occasions through amending Laws Nos 2936, 4110, 4630, 5101, 5217, 5571, 5718 and, most recently, Law No 5728 in 2008, was originally drafted by Professor Ernst Hirsch, who fled Germany in 1933 to seek refuge in Turkey.
Between 1951 and 1995, a film producer was recognized as the sole author of cinematographic works under Turkish copyright law. As of 12 June 1995, when Law No 4110 came into effect, the producer became a holder of ‘neighbouring rights’, as they were referred to at the time, while the director, the composer of the original music and the scriptwriter were recognized as joint authors of cinematographic works. When the term of protection for cinematographic works was raised from 20 to 70 years, holders of neighbouring rights were equally granted a 70-year term. As of 3 March 2001, when Law No 4630 took effect, the producer's status was renamed as the holder of ‘related rights’, and the number of joint owners in cinematographic works was increased from three to five, with the addition of dialogue writers and animators, where animated cinematographic works were concerned.
A plea of unconstitutionality came before the Constitutional Court following a referral by the 4th Court of Intellectual and Industrial Rights in Istanbul, in its capacity as the court of first instance, where the claimant alleged inter alia that, as the director, he had been unlawfully deprived of exploitation rights to which he was entitled as an author of the films that were being broadcast on the defendant's television channel. The court of first instance saw merit in the claim that the final paragraph of Supplementary Article 2, as inserted by Article 35 of Law No 4630 of 21 February 2001, was in contravention of Articles 10 (‘Equality before the Law’), 35 (‘Property Rights’) and 64 (‘Protection of Arts and Artists’) of the Turkish Constitution. The contested clause reads as follows:
The provisions of this Law that are related to authorship of cinematographic works, shall apply to works, the production of which have commenced after 12 June 1995 when Law No. 4110 came into effect.The claimant objected that, as of the above date, producers had continued to be solely entitled to revenues for films on which production began before 12 June 1995, while subsequently recognized joint authors whose works were broadcast on television had been deprived from claiming a share of the revenue to which they were entitled as joint owners of films.
The Constitutional Court unanimously held that the contested clause was indeed in breach of the Constitution, but for a different reason than that suggested by the claimant and upon which the referral was based. Perhaps, having given unduly short shrift to the claimant's arguments, and not having addressed the allegations posed, the Constitutional Court elliptically stated that ‘contrary to the grounds in the file that came before the court, the rule [i.e. the disputed clause] was unrelated to the implementation of those provisions in regard to terms of protection, but that the latter had been regulated under the paragraphs that preceded the rule in Supplementary Article 2 of Law No 5846″ (s V(5) of the judgment). The court noted that the legislature's intention had simply been to prevent potential disputes and to protect the vested interests of the film producer who was deemed the sole author of cinematographic works prior to the amendments in 1995. Unconstitutionality lay, instead, in the clause which enabled dialogue writers and animators, who were subsequently included among authors of cinematographic works, to have a claim retrospectively over exploitation rights in cinematographic works. Since the offending clause was found to contravene Articles 2 and 35 of the Constitution, the court deemed it redundant to consider whether the infringing clause also breached Article 10 or 64.
Article 2 of the Constitution
While not cited in the referral, among the allegedly infringed articles of the Constitution, pursuant to the authority granted to the Constitutional Court under Article 43 of Law No 6216 on the Establishment and Litigation Procedure of the Constitutional Court, the court examined, at its discretion, whether the clause in question happened to be in breach of Article 2 of the Constitution (‘Characteristics of the Republic’) where reference is made to the rule of law. In this context, the court noted, inter alia, that save for a limited number of exceptional instances non-retroactivity of laws was an inextricable aspect of the rule of law. To ascertain whether the clause, in favour of dialogue writers and animators, which was inserted in 2001 by Law No 4630, had operated retroactively insofar as ownership in cinematographic works was concerned, the court traced the series of amendments that resulted in an increased pool of joint owners since 1995.
The court noted that with the amendments made in 2001 by Law No 4630, when dialogue writers and animators were added as authors, the final paragraph of Supplementary Article 2 ensured that the provisions on authorship of cinematographic works were to be effective as of 12 June 1995, when Law No 4110 came into effect. Put differently, this meant that neither the film producer, who was deemed the sole author prior to 12 June 1995, nor the director, scriptwriter or composer, who were defined as the three joint authors as of 12 June 1995, would be affected by the amended provisions of Law No 4630 of 2001 on authorship. Conversely, when dialogue writers and animators were included among joint authors of cinematographic works by virtue of Law No 4630 of 2001, these two entities were subject to the same provisions on authorship in accordance with the final paragraph of Supplementary Article 2, which in turn enabled them to become retrospectively entitled to authorship in works produced between 12 June 1995 and 3 March 2001, when Law No 4110 and Law No 4630 took effect, respectively.
Article 35 of the Constitution
The court held that the disputed clause, as it stood, was prejudicial to the proprietary rights of joint owners in cinematographic works and thereby in contravention of Article 35 of the Turkish Constitution according to which proprietary and testamentary rights are recognized as fundamental prerogatives of each individual. The court noted that since, according to Article 8(3) of the Law on Intellectual and Artistic Works, joint authors of a cinematographic work are also joint owners of the same, and each author is entitled to an equal share of the revenues from exploitation rights in accordance with Article 10 of the Law on Intellectual and Artistic Works, whereby joint owners are subject to the provisions on ordinary partnerships as defined by the Turkish Commercial Code. The court concluded that the retroactive application of the provisions of the final paragraph of Supplementary Article 2 entitled dialogue writers and animators to retrospectively claim a share of the profits which had accrued to the director, scriptwriter and composer in respect of films produced between 12 June 1995 and 3 March 2001. The court held that this effectively amounted to a limitation of the vested proprietary and exploitation rights to which only the above three authors were entitled as joint owners.
The ruling by the Constitutional Court seems opportune, following two recent articles in JIPLP by Stefano Barazza (JIPLP (2012) 7(6): 394) and Enrico Bonadio and Lorraine Lowell Neale (JIPLP (2012) 7(7): 493) for tracing the changes made to the copyright legislation with respect to authorship of cinematographic works in Turkey.
Moreover, the case illustrates the laboured and protracted means of redressing inadequacies in legislation drafted without due foresight through the instrumentality of the Constitutional Court—a practice which appears to have become common in recent years in Turkish intellectual property legislation, as in the case of Legislative Decrees Nos 551 and 556, on patents and trade marks, respectively, where the imposition of criminal liability through decrees was held to be unconstitutional. This has given rise to a curious anomaly that, to date, save for that of trade marks in respect of which criminal offences were reinstated through Law No 5833 of 21 January 2009, infringements of patents, industrial designs and geographical indications, which are regulated by decrees, continue to remain immune to criminal sanctions.