Legal Journal

Effect of Death on Right Ownership of The Work

Author’s Rights

According to Law on Intellectual and Artistic Works (“LIAW”), author rights are evaluated in two parts as economic rights (Art. 21-25) and moral rights (Art. 14-17). Economic rights are related to author’s financial and economic bond with his work. On the other hand, moral rights arise from moral relationship between the author and his work and closely tie to author’s personality.

Effect of Author’s Death on Economic Rights

The author has right to make commitment and disposal transactions on economic rights. Author may partly or completely transfer his economic rights to anyone or he can also grant a license to exercise those rights.

In the event of author’s death his economic rights will legally and automatically transfer to his heirs by inheritance (LIAW Art. 63). In accordance with the principle of complete succession, all of his assets, rights and debts will completely transfer to his heirs therefore obligations on economic rights will transfer along with the rights. However, copyright contracts’ continuity after author’s death, has its own characteristics.

Effect of Author’s Death on Moral Rights

Author’s moral rights are strictly dependent on his personality and cannot be evaluated with money. Therefore, moral rights cannot be subject of transfer through agreement.

Exercise of Moral Rights After Death

Separated from the classical moral right doctrine regulated by Turkish Civil Code, LIAW Art.19/1 specially regulates who can exercise moral rights (which are defined by sampling) after author’s death.

Pursuant to Art. 19 of LIAW, if the author has not specifically determined how or by whom his,

• Right to decide the work’s name (Art.15),
• Authority to disclose the work to the public right (time, place and manner of its diclosure)  (Art.14),

shall be exercised, these rights shall be exercised only by authorized people in accordance with the relevant provision.

The author may specifically authorize one or more of his heirs or a third party to exercise his moral rights which are stated in LIAW Art.14 and Art.15. This authorization may be done through a contact or with a testamentary disposition. For instance, if the author authorized a third party to determine whether a book is published in accordance with the original title or publication periods, then, this third party shall be authorized to control the exercise of moral rights.

If the author has executed an agreement on transfer of economic rights or a license agreement, but has not grant authorization to use of moral rights after death, it can be concluded that tacit consent was given to the exercise of the relevant moral rights, since the exercise of a transferred economic rights is only possible with the consent regard to relevant moral right. For instance, if a right of distribution has been granted to a publisher, it will be concluded as the author has given a consent to exercise his authority to disclose the work to the public right (one of his moral rights) even if it is not mentioned on the contact. In other words, the author may clearly authorize the assignee or licensor within the scope of Art. 19/1 or it can be deemed as the author has tacit consent to the exercise of these rights.

On the other hand, if the author did not establish any transfer agreement and did not authorize anyone to exercise his moral rights, then, his moral rights might be used by persons specifically designated under LIAW Art.19 (the executor, if no executor has been appointed, successively by the surviving spouse and his children and his testamentary heirs, his parents, his siblings).

It can be accepted that the author consents author consents to exercise his relevant moral rights with the license or transfer agreements, however it is important to specify the scope of this consent in advance and clearly in the agreement, in order to resolve the dispute that may arise.

Exercise of Moral Rights Under LIAW Art.19/2

According to LIAW Art.19/2, after author’s death, the rights of;

• Prohibiting disclosure of the work to the public or publication of the work in case the style of publication harms the honor and reputation of the author
• Demanding the determination of the real right owner by court if the creator of the work is controversial,
• Prohibiting modifications on work in a way that will harm author or honor and reputation of author or will damage the characteristics of the work

can be exercised by authorized people similar to Art. 19/1. The difference between the clauses examined under separate headings is that the authority to be used for the cases of clause 2 shall be used by authorized people "on their own behalf" and they can use this authority for a period of 70 years from the date of death of the author. The reason for the distinction between these two clauses has been the subject of debate in the doctrine. Even though LIAW has made regulations on two different issues under Art. 19, our comments on first clause are also valid for this clause, apart from the differences mentioned above.

Conclusion

Although there is less discussion regarding the exercise of economic rights after death, transition of moral rights is controversial. In this respect, it is important to make the agreement in a way that will minimize the discussion on this issue when executing a transfer or license agreement regarding the works.

Av. Ege İnanıcı

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