Press Release Nr: Plenary Assembly 3/16
28/01/2016

JUDGEMENT ON APPLICATION RELATED TO EXPROPRIATION OF INTELLECTUAL AND ARTISTIC WORKS BY ISSUING A COUNCIL OF MINISTERS’ DECREE
(Click for full text of judgment)

The Constitutional Court held, by majority, in its judgement on 14.5.2015 to annul the first sentence in the first paragraph of Article 47 of Law on Intellectual and Artistic Works which prescribes that rights on works created in Turkey or by Turkish citizens outside of Turkey may be expropriated by issuing a Council of Minsters’ Decree after the death of the author and before the expiry of the term of protection.

Provision of Law subject to Constitutionality Review

The provision of law subject to constitutionality review is related to expropriation of rights on works, which are deemed important for the culture of the country, after the death of the author and before the expiry of the term of protection through the payment of an appropriate fee to the right holders and by issuing a decree.

Grounds

The petition for application alleges that there is no public interest in expropriation of works, which are available in the market and cannot be claimed unavailable, through the payment of “an appropriate fee” to be determined by one party alone and that such a practice would restrict the property right of the author on the relevant intellectual or artistic work to an extent which infringes the essence of right to property. It is also alleged that monopolized supply of intellectual and artistic works, which can be accessed by the public without any obstacle, through methods and to the extent prescribed by the State contradicts the freedom of expression and dissemination of thought and the freedom to access thought and information. Accordingly, it requests the annulment of the relevant provision of law regulating the aforementioned subject matter of the case.

The Court’s Assessment

1. In Terms of Right to Property

The Constitutional Court first established that expropriation of the economic and moral interests of authors’ heirs in the intellectual and artistic works constitutes an interference to the right to property and emphasized that right to property may be limited only in view of public interest in accordance with Article 35 of the Constitution.

The Court concluded that expropriation of the authors’ rights in the intellectual and artistic works aims to ensure the continued public supply of the works which are deemed important for the culture of the country and, therefore, it does not contradict the public interest.

The Constitutional Court underlined that the guarantees under Article 13 of the Constitution must be observed in restricting the right to property and emphasized the proportionality of the restriction imposed by the relevant provision.

The Constitutional Court noted that, in this aspect, the provision of law subject to review allows for expropriation, by issuing a council of minsters’ decree, of the rights on the works which are provided to the public without any problems. The expropriation, by issuing a council of minsters’ decree, of rights on the works which can be accessed by public through the transactions of author’s heirs and, thereby, depriving the owner of his/her property does not constitute a necessary means to achieve the aforementioned aim.

The Court also noted that, although the provision of law subject to review limits the “authority to expropriate by issuing a decree” to works which are deemed important for the culture of the country, the subjective aspect of the criterion “being important for the culture of the country” outweighs and, thereby, it paves the way for misuse of the said rule. The Court stated that the relevant rule, in its current version, is not suitable to achieve the pursued aim.

Although the relevant rule tries to strike a fair balance between the public interest and individual’s interest by reserving “the right to claim the payment of an appropriate fee” of those deprived of their right to property, the Constitutional Court emphasized that vesting only the right to claim instead of paying the economic value of the rights expropriated directly to the right-holder contradicts the guarantees of the right to property under Article 35 of the Constitution. Taking all these issues into consideration, the Court concluded that the restriction imposed by the provision of law subject to constitutionality review on the right to intellectual property is not proportionate and decided that the relevant provision is contradictory to Article 13 and 35 of the Constitution.

2. In Terms of Freedom of Expression and Freedom of Science and Arts

The Constitutional Court noted that the freedom of expression regulated under Article 26 of the Constitution means that everyone may freely access to news, information and others’ opinions, that no one shall be blamed or accused because of thoughts and opinions that s/he obtained and that s/he may freely express, defend and disseminate such thoughts and information either individually or collectively. The Court underlined that all means to disseminate information and thoughts are under constitutional guarantees.

The Constitutional Court emphasized that the freedom of science and arts guaranteed under Article 27 of the Constitution means everyone may freely engage in activities to create, promote, disseminate and present all kinds of scientific and arts works without any interference by the State or another third-party.

The Constitutional Court noted that dissemination and publication of intellectual and artistic works, which are the products of mental effort, must be assessed under the scope of the freedom of expression. The Court concluded that expropriation of intellectual and artistic works after their authors’ death restricts the heirs’ right to determine the form and means of distribution and supply to public of the relevant work and, therefore, the said provision of law constitutes an interference to freedom of expression and freedom of science and arts.

The Constitutional Court established that freedom of expression and freedom of science and arts are essentials of a democratic society based on pluralism, tolerance and open-minded society. The Court noted that, in a democratic society, these freedoms may be interfered to only if there are compelling reasons.

Although intellectual property rights are considered under the scope of the right to property, these rights are closely related to freedom of expression which is an essential element of a democratic society. The Court noted that, while carrying out a review on whether an interference to these rights is “necessary in a democratic society”, the assessment to be applied must be different from that of other subjects of right to property which have mere economic value. Accordingly, the Court emphasized the need to address with a different perspective the issue of whether an interference to intellectual property rights is “necessary in a democratic society”.

In this context, the Court noted that the discretion to determine the form, means and extent of publication of an intellectual and arts work, which are the product of a mental effort, shall belong to his/her heirs in the first place after the death of its author and this is an inseparable aspect of the right to disseminate thoughts and opinions which is an essential element of freedom of expression. The Court recalled that an interference to such rights of the author’s heirs may be considered based on justified grounds only if there are compelling reasons. The Court noted that a compelling reason may be mentioned only if there are serious problems on publication of and public access to the relevant work due to certain legal or practical reasons.

The Court stated that the provision of law subject to review allows for expropriation of works which are published and can be accessed by public without any problems and, as such works can be accessed without any public support or contribution, expropriation of these works cannot be claimed to arise from a pressing social need.

Consequently, the Constitutional Court reached to a conclusion that vesting the council of ministers a discretionary power which may lead to expropriation of all works, which are deemed important for the culture of the country, after the death of their authors constitutes an interference to freedom of expression and freedom of science and arts which is incompatible with the requirements of a democratic social order. The Court decided that the provision of law subject to contention is contrary to Article 13, 26 and 27 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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