Economical rights on the works of cinema

Cinema is one of the most effective and widespread mass media tools. Among the mass media tools, cinematographic works may even target at people who cannot read or write and have an expression composed of moving images, words or writings and music. It is important that the economic rights of authors and performing artists should be known and the current problems regarding these rights shall be highlighted. Firstly, this requires the definition of the relevant legal terms. Cinema is a method of obtaining a moving image by reflecting stable images recorded on a film at an enough speed by using a projector or another tool. The definition of cinematographic works is given in Article 5 of the Law of Intellectual and Artistic Works (Law No. 5846) (the "Law"): "Cinematographic works are a set of moving images related to one another with or without a sound such as films or cinema films in all kinds of aesthetic, scientific, educative or technical nature or detecting current events which may be shown with an electronic or a mechanical or similar devices regardless of the material of its production." Although maybe the most important type of cinematographic works are films; they are not the only type. The Law makes a separation into two by stating that "films or cinema films in all kinds of aesthetic, scientific, educative or technical nature or detecting current events". Images shot for educative purposes, giving technical information or news, interviews, documentaries or introduction of an institution, advertisements, fixation of performance of a concert, play etc. may be considered within the first group. The second group consists of cinema films. In the Draft Law on Amendment of the Law of Intellectual and Artistic Works numbered 5846, the term "audiovisual work" is used for cinematographic works. As a result of the need to protect television centered creations which are spreading widely in many countries, it is regarded that the adoption of this broader term will prepare a positive ground for the legal classification of a wide variety of creations involving a set of moving images. Another term that needs explanation is the authorship in cinematographic works. In Article 8/3 of the Law, the authors of cinematographic works are defined as "... the director, the composer of original music, the scriptwriter and the dialogue writer are joint authors of the work. For cinematographic works which are produced by using animation technique, the animator is also among the joint authors of the work" The type of the association these persons create who are protected as authors and the provisions which shall be applicable to this association are not expressly stated in the Law. It may be stated that the association that the authors of cinematographic works create has a sui generis structure. Each author has rights over the entire cinematographic work. There are similar and different legislations to the Turkish law in the comparative law. In the French law, the authorship on cinematographic works belong to various persons in principle; the scriptwriter, the dialogue writer, the composer of original music, the director of film, the writer of the written work provided that the audiovisual work is based on a written work. A similar approach is adopted in German Law; the authorship on cinematographic works belongs to the director, the director of cinematography, the composer of original music. In Austria and Italy, the director, the scriptwriter, the dialogue writer and the composer are considered as joint authors of the work. In Swiss law, unlike the other European countries, each person who proves that he/she has made a creative contribution to the cinematographic work are considered as joint authors of the work. In this regard the persons such as art directors, set designers, and film editors are considered as authors of cinematographic works in Switzerland. In the English law, the producer is also accepted as an author along with the director. The traditional English solution to the authorship of the cinematographic works - that the producer is in principle the author - is also adopted by other countries such as USA, Australia, and New Zealand. In the USA, the authorship is regulated in two different ways in the Copyright Act: "works for authorship" for defining the situation where the work belongs to its creator, and "work made for hire" for defining the situation where the work is created by persons who are hired in exchange of an amount of money. It is accepted that the cinematographic works fall into the second category. Such works are created upon an order. Accordingly, provided that the director is an "employee" of the producer, all rights over the cinematographic work are accepted to belong to the producer. In short, all rights regarding a cinematographic work are accepted to belong legally to the producer, and the creators of this work have no authority to receive these rights back and to prevent the producer to exercise these rights. Unlike the Turkish law, the author of the work may be a legal entity in this system. The author has various rights over his/her work. The economic rights are absolute rights which exclusively entitle the utilization of the work economically, to determine the type of this utilization and to prevent third persons from utilizing the work. The authors of cinematographic works are entitled to the right of adaptation, right of reproduction, right of distribution, right of performance, and right to communicate the work to public by devices enabling the transmission of signs, sounds and/or images. The right of adaptation defines the right to create an adaptation work. Adaptation is the creation of a new work in another type based on the main work. The situation with the remakes and sequels are examined according to the right of adaptation. In general, a remake is the shooting of a cinema film again years after its first shooting. The right of reproduction is an economic right where the original or copies of a work in any form or by any method, in whole or in part, directly or indirectly, temporarily or permanently belongs exclusively to the author. Pursuant to the directives of EC, it is accepted that the rights of authors shall be restricted in case of personal use, use of libraries, use of social institutions such as prisons, use for educative and scientific purposes, use for handicapped persons, use for the purpose of news, interviews and critics, security or as a requirement of trials. It is seen that the Draft Law on Amendment of the Law of Intellectual and Artistic Works numbered 5846 regulates necessary amendments in accordance with the EC directives. The right of distribution defines the sale, renting, lending or distribution of the original or the copies of the work without a commercial purpose.The right of performance is related to the performance of a work to a certain group directly or indirectly with the help and transmissions of some devices. Although it may be thought that a cinematographic work is performed to the viewers by means of certain devices, the display of a cinematographic work falls into the category of direct performance due to its nature. The right to communicate the work to public by devices enabling the transmission of signs, sounds and/or images define the economic benefits obtained by communicating the work to public via broadcasters such as radio, television, satellite or cable by means of using devices and methods transmitting signs, sounds and images. Pursuant to the Draft Law on Amendment of the Law of Intellectual and Artistic Works numbered 5846, provided that an author assigns his/her right of retransmission or permits the use of this right, he/she is entitled to ask for an appropriate amount and is not entitled to waive this right. Upon the enforcement of this provision, it will be fair for the authors of cinematographic works whose works are broadcasted on television many times. A performing artist is a person who transfers a work to others by using his/her own skills and bringing a soul and meaning to it. By interpreting a work by means of performing it, a performing artist helps the work to reach to public. A performing artist has absolute and related rights over his/her performance ipso iure and unconditionally. A performing artist has exclusive absolute rights to permit or prevent fixation, reproduction, distribution, performance and communication to public of his/her performance. In other words performing artists have the right to fixation and reproduction of their performance, renting, lending, selling or distributing the originals or copies of the performance in other ways, performance, communicating the performance or its fixation by retransmission via wired or wireless broadcasting institutions such as radio, television, satellite, or cable including digital transmission, communicating the fixation of work to public by wired or wireless devices in the place and time the persons chose. Pursuant to the Draft Law on Amendment of the Law of Intellectual and Artistic Works numbered 5846, in a contract regarding a film production between the performing artist and film producer, the performing artist is considered to assign his/her right to rent to the film producer, unless otherwise indicated. The performing artists are entitled to an amount of money provided that they assign their right to rent over the originals or reproductions of the film, or that they permit the use of this right or when they are considered to have assigned this right to the film producer. Performing artists are not entitled to waive their right to ask for an amount of money in return of renting. The draft law brings a positive and appropriate amendment by regulating that the performing artists are entitled to ask for an amount of money even whey are considered to have assigned their right to rent and that they are not entitled to waive this right. As per Article 52 of the Law, the contracts regarding economic rights shall be in written form and each right to be assigned shall be stated separately. Considering that the Law's regulation regarding the rights are not clear, it should be known that it is indispensable to state each right to be assigned separately to prevent future disputes. An assignee that has been assigned an economic right by the author or his/her successors in title, may assign this right to third persons by obtaining a written prior or subsequent consent from the person who has assigned this right to himself/herself. The written consent of the author or his/her successors in title is also required for derivative acquisition. For instance, a producer that has been assigned economic rights by the author needs the written consent of the author in order to assign these rights to another producer. In order to assign economic rights over performances, a right shall be present at that moment. Assignment of rights over works that has not yet been created is invalid. Rights over works are only generated upon the creation of the work. Therefore, a person does not possess an economic right on which he/she is entitled to dispose provided that the work has not yet been created. The performing artists' contracts regarding the assignment of rights over their performances that have not yet been performed shall be deemed invalid. However, a contract regarding the undertaking of the obligation to assign or to consent to the use of rights over a performance that has not been performed yet shall be valid. These are supplementary to the contracts regarding the assignment of rights. It is important for the performing artists to know that they have a chance to avoid violation of their rights emanating from having signed such unilateral contracts which exploit the work force of the performing artists and if not signed, might cause the performing artists to lose their job through which they display their creativity. The performing artists who are in difficult situations may claim that the contracts in which they assign their economic rights are not contracts regarding the assignment of rights. The contracts between the producers and authors or performing artists generally do not possess the features of an individual contract. In practice it has been observed that the producer unilaterally drafts the contract and uses it for its own benefits and as a result, the authors and performing artists have no contribution to the drafting of the contract. The producer unilaterally drafts these contracts and presents them to the authors and performing artists. It is observed that more than one contract are drafted for shooting a film. It may not be stated that the authors and performing artists have a chance to contribute to the drafting of the contracts between themselves and the producers. For the standard terms and conditions in such contracts that are against the benefit of the authors and performing artists to enter into force, the producer shall inform the authors and performing artists expressly during the execution of the contract and allow them to learn the content of such terms and conditions and that they shall accept those provisions. The producer shall provide an opportunity to the authors and performing artists to learn the content of standard terms and conditions, warn those persons that standard terms and conditions are used in the contract and provide a copy of the contract to them. Otherwise, the standard terms and conditions in the contract shall be deemed unwritten. When appropriate, provisions in a contract that have been drafted by protecting the benefit of one party shall be deemed invalid and the relevant persons shall be protected. With the Turkish Code of Obligations that is effective July 2012, the contracts regarding the assignment of economic rights of authors and performing artists to the producers are hoped to be fairer with precedents and doctrine. The minimum requirements regarding the contracts of assignment of economic rights shall be determined by professional associations. Professional associations are formed by the related right holders for the purpose of protecting the joint benefits of the authors and related right holders, protecting and pursuing the rights granted by the law, collecting the money to be collected and distributing it to the right holders. The professional associations established regarding the authors of cinematographic works and performing artists should be united. These associations should abandon the conflicts between themselves and work coordinative in order to act as a body. Pursuant to the Draft Law on Amendment of the Law of Intellectual and Artistic Works numbered 5846, the name of the professional associations are amended as copyright associations and it is regulated that only one copyright association shall be established in each area. The sphere of authorship in audiovisual works are divided as the sphere of authors, sphere of performing artists and sphere of film producers. The draft law aims to prevent the conflict in practice by regulating that only one copyright association shall be established in each one of these areas. Current problems exist regarding the economic rights of authors, performing artists and film producers. For instance, additional Article 2 of the Law No. 4630 regulates that the producers shall be considered as the author of all productions produced before 1995. Thousands of cinematographic works that have been produced before 1995 are broadcasted on television channels; and the real right holders of these works as stated in Article 8 of the Law - the director, the composer of original music, the scriptwriter and the dialogue writer - do not receive their copyrights arising from the right of communication to public whereas the producers and television channels earn large sums of money. The distinction that is applied only due to a chronological coincidence - that the cinematographic works which are started to be produced after 12 June 1995 shall be subject to the law in force - is in violation of the constitutional right of equality that requires equal treatment to those who are in equal situations. It is seen in the Draft Law on Amendment of the Law of Intellectual and Artistic Works numbered 5846 that the additional Article 2 of the Law is not abolished although it has been criticized in the doctrine many times. The legislature should abolish the additional Article 2 of the Law immediately and relief the relevant persons. The internet has become a unique device for the production of pirate copies and made it easy to reach to intellectual and artistic works without paying any copyright. One of the most damaged sectors on the internet is the cinema sector. It is our opinion that the most effective way to prevent this problem is to form an international body. The Draft Law on Amendment of the Law of Intellectual and Artistic Works numbered 5846 aims to provide effective and quick solutions to those whose rights have been violated by regulating the provisions titled Protection Measures and Punishments for the Violations Occurring through Websites, Punishments for the Violation of the Right of Communication to Public by Point to Point Networks.