Pursuant to Law No. 5846 on Intellectual and Artistic Works (“LIAW”), the owner of the work, in principle, is the person who creates the work, and this person is the exclusive owner of the material and moral rights arising from the creation of the work.
According to the LIAW, although material rights may be waived by the author or transferred to third parties, the transfer of moral rights, or waiver of these rights, are not possible in accordance with the mandatory provisions. Therefore, in principle, the owner of the work can transfer his/her material rights arising from the work to third parties, but can only transfer the right to use the moral rights, and continues to be the right owner in terms of the moral rights.
The exception to the rule stated, above, with respect to the right ownership is regulated within the scope of Article 18 of the LIAW. In the first paragraph of the relevant Article, in accordance with the general regulation on right ownership, the authority to exercise material rights is also reserved for the author. However, in the ongoing paragraph, the authority to exercise the rights on the works created by the civil servants, servants and workers, during the performance their work is given to the employer, unless otherwise agreed by a special contract or by the nature of their job.
Although the provision in question can be regarded as similar to the "work-for-hire" principle in Anglo-Saxon law, it essentially provides a narrower field of rights to the employer. In the "work-for-hire" principle, the employer becomes the owner of all the rights on the work created by the employee without any further action; whereas, the rights granted to the employer within the scope of Article 18/2 in the LIAW in Turkish Law are restricted as "The authority to exercise material rights." With this restriction, the employee's moral rights on the work are protected since the employer is not the owner of material rights, and is defined as a person authorized to exercise these rights.
With this Article, the LIAW guarantees that the employer has the authority to exercise material rights without the need for a separate transfer of rights agreement with a special regulation in terms of right ownership on the works created by the employee.
However, in order for this regulation to be applicable, it is important to carefully prepare the definition of the job that is expected to be fulfilled by the employee as is set out in the employment contracts and the provisions on intellectual property rights. Within the scope of Article 18/2, the employer's authority to use the material rights on the work is subject to the condition that the work in question is created as a result of the work carried out in accordance with the employment contract between the parties. Therefore, the inclusion of provisions on the transfer of intellectual property rights into employment contracts will strengthen the rights recognized by Article 18/2. Hence, it is important for the employee to undertake that he/she will transfer the financial rights of the works created as a result of the nature of his/her job to the Employer, and to transfer the authority to use his/her moral rights to the Employer.
In the increasingly digitalized world, this situation is especially important in sectors with more technical details, such as computers and software, which work intensity is increasing daily. Thus, it is recommended that employment contracts be supported with additional protocols. It will be useful to detail the nature of the software to be created with the aforementioned additional protocols, as well as the transfer of ownership to the employee, in order to prevent possible disputes that may arise in the future.