Events
The applicant, M.E.D., created the work titled “Mehmet Akif Ersoy and Safahat -Full Text and 54 Poems Not Included in Safahat,” which was created by adapting the poems of Mehmet Akif Ersoy, for a period of 99 years on January 4, 1997, and began publishing the work in question after that date. Based on the contract signed with the heirs, the publishing house, which has held the financial rights to the work titled “Safahat,” which is based on the poems of Mehmet Akif Ersoy, since 1943, filed a compensation lawsuit against the applicant on April 6, 2006, claiming that the work published by the applicant infringed on its financial rights. The court found that the provision of the temporary Article 2 of Law No. 5846 on Intellectual and Artistic Works , which came into force on January 1, 1952, and concluded that permission must be obtained from the owner of the economic rights in the event of the re-publication of works whose publication process was completed during the period when the amendment made by Law No. 4110 came into force, when protection recommences. The court concluded that the publication and sale of the work in question was unlawful because permission had not been obtained from the bookstore that had acquired the economic rights to Mehmet Âkif Ersoy’s poems from his heirs; it awarded 25,000 TL in damages against the applicant. The applicant appealed this decision. The Court of Cassation upheld the judgment, correcting it in terms of litigation costs, but rejected the request for correction of the decision.
Allegations
The applicant claimed that the publication of the work was unlawful and that his property rights had been violated.
The Court’s Assessment
The fundamental issue in this case is whether the work created by adapting Mehmet Âkif Ersoy’s poems, after the 50-year protection period expired in accordance with the legislation in force in 1987, became unlawful due to the extension of the protection period to 70 years by Law No. 4110, which entered into force on June 12, 1995. , thereby extending the term of protection to 70 years, rendered the work unlawful.
First, it should be noted that it is unreasonable to apply the amendment made to the transitional Article 2, which contains provisions regarding acquired rights formed before the entry into force of Law No. 5846 on January 1, 1952, by Law No. 4110, which entered into force on June 12, 1995. Transitional provisions regulate the position of legal situations that arose under the legislation prior to legal amendments in relation to the new regulation. Therefore, transitional provisions have an effect limited to the transition period for which they are intended. In this context, it is clear that the scope of application of the temporary Article 2, which was introduced to regulate the status of acquired rights formed before January 1, 1952, when Law No. 5846 entered into force, is limited to events prior to January 1, 1952. Therefore, it is an unpredictable interpretation for the court to apply the temporary Article 2 to determine whether the work in question, published after that date, falls within the scope of protection of Law No. 5846.
Since Law No. 4110 does not provide for a transitional provision regarding works created before the entry into force of the said Law, the issue of whether the work falls within the scope of protection of Law No. 5846 must be resolved in accordance with the general provisions and in light of the principle of the rule of law.
The work in question, in which the applicant acquired the financial rights and which incorporates the poems of Mehmet Âkif Ersoy, was created in 1987 and has been made available to the public since that date. Therefore, the work in dispute was lawfully made public before June 12, 1995, the date on which 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 rights regulated by Law No. 5846 and that the economic rights under Law No. 5846 have become the property of the author of the work or the person who acquired them.
Although the term of protection for Mehmet Âkif Ersoy’s poems was extended until January 1, 2007, as a result of the amendment made by Law No. 4110, which entered into force later, this does not automatically exclude works created by processing Mehmet Âkif Ersoy’s poems from the scope of protection under Law No. 5846. Since there is no provision that explicitly abolishes the economic rights relating to works made public before the date of entry into force of Law No. 4110, it is not an interpretation consistent with the principle of the rule of law to conclude that the applicant’s rights have expired on the basis that the rights of Mehmet Akif Ersoy’s heirs have been revived. In this case, it cannot be concluded that the legal rules applied in the dispute were interpreted in light of the principle of the rule of law and with due regard to the principle of foreseeability.
Undoubtedly, if there is a clear provision in the law that eliminates the applicant’s right, it must also be examined whether this provision ensures a fair balance between the interests of the applicant and the bookstore. However, the fact that the legal rules applied to the dispute did not meet the criterion of predictability was deemed sufficient to conclude that an excessive and unusual burden had been imposed on the applicant.
In this case, the award of damages against the applicant for publishing and selling the work in question constituted a violation of the state’s positive obligations.
The Constitutional Court ruled that the right to property had been violated based on the reasons stated.