LIAW which entered into force in 1952, has been amended in 1995, 2001, 2004, 2006, 2008, 2012, and 2014. The amendments in 1995 and 2001 were major amendments which changed the legal regime for rights to cinematographic works and created legal uncertainty as to the ownership and protection term for rights to cinematographic works.
The initial text of the LIAW (dated 1952) recognized the Producer of a cinematographic work as the author and provided for a protection term of 20 years starting from the publication of the work.
The 1995 amendment changed the regime for ownership rights and protection terms for cinematographic works. The 1995 version of the LIAW made the Director, Scriptwriter and the Original Music Composer as the joint authors of cinematographic works. The protection period was changed to 70 years from the publication date. The newly added Additional Article 2 provided two important exceptions to the changes: (i) the new provisions regarding the ownership of the cinematographic works would not apply to cinematographic works created before 1995, and (ii) the new protection term of 70 years would apply only to cinematographic works released after 12 June 1995.
Therefore, for the cinematographic works which were created and released before 12 June 1995, the copyright owner remained as the Producer and the protection term to be applied is 20 years.
In 2001 the law changed again to make the director, scriptwriter, dialogue writer and the original music composer the joint authors of cinematographic works For animated cinematographic works the animator would also consider a joint authors of the work. The old provision (Article 29) for the legal protection term of cinematographic works was annulled and general principles as to protection terms became applicable to cinematographic works, i.e. (i) For works of which the author is an owned by real person the term is lifetime plus 70 years from the date of death, or (ii) if the first owner of the work is a legal entity the protection period is 70 years starting from the date of release (the work is made available to the public). Film producers were granted “neighbouring rights” to cinematographic works.
Barring some exceptions, the new provisions would apply to all works produced in countries party to international treaties with Türkiye. The exceptions to this were (i) the new ownership regime would apply only to works the creation process of which began after 12 June 1995, (ii) the work must not have been in the public domain when the amendment entered into force on 03 March 2001.
These changes created legal uncertainty because of the narrower exceptions to its applicability versus the 1995 amendment.
Indeed, as per the amended wording of the Additional Article 2/last of 2001, the new provisions including the protection term shall be applied to all works, which are produced in the countries party to the international treaties that Türkiye is a party to and are not under public domain at the date that this amendment has become effective, i.e., 03 March 2001. But the provisions as to the authorship of cinematographic works will be applicable only to works of which the creation process has started after 12 June 1995.
The amendment’s silence on the matter of protection terms created uncertainty around the determination of the correct protection term for cinematographic works created and released before 12 June 1995, unlike the clear ownership regime.
The current legal regime is based on the 2001 law and uncertainty around protection terms remain. There are differing views on the matter. One is that if the initial protection term, i.e. 20 years has already expired, then it should be extended no further. Another view states that cinematographic works created before 12 June 1995 lie completely outside the scope of the new protection terms. Finally, some state that the exclusion is applicable only to the ownership provisions so the ownership of these works should remain with the Producer, while the new provisions for protection terms should be applied.
There are few cases discussing this legal uncertainty, and those cases are mostly concerned with Turkish productions from the 1970’s. The Court of Cassation acknowledged that the extended protection term, i.e., 70 years should be applied, without making a distinction regarding the expiration of the initial 20-year protection term.
In our view, as the 2001 text of LIAW covers all works produced in countries party to the same international treaties as Türkiye, that are not under public domain before March 03, 2001. The new 2001 protection terms for cinematographic works should be applied to the works created before 12 June 1995; the while their ownership should remain with the Producer. Accordingly, for works created before 12 June 1995 (i) If the Producer was a real person, then the protection must be the lifetime of the Producer and plus 70 years upon the date of death and (ii)If the Producer was a legal entity the protection period is 70 years starting from the date of release (making available to the public).
As there are many cinematographic works which were created and released before 12 June 1995, it is important that the uncertainty around the legal regime applicable to these works be clarified.
First published by Gün + Partners in 29.05.2023.