As important as the production of intellectual and artistic works, the protection of the rights arising from these works, particularly financial interests, is also of great importance. In our country, collecting societies have been established in certain fields in order to protect the rights and interests of authors, related right holders and other persons in respect of intellectual and artistic works.
I. Legislation and Legal Nature
Collecting societies are based on the Law on Intellectual and Artistic Works numbered 5846 (“Law on Intellectual and Artistic Works”).
Pursuant to Article 42 of the Code, collecting societies are established “by authors and holders of rights related to the rights of authors, and by those who reproduce and disseminate non-periodical publications using the rights on scientific and literary works, by taking over the authorisation to use the financial rights from the author or right holder by means of contracts concluded in accordance with Article 52 of the Code. These are associations established in areas to be determined in accordance with the regulations and type statutes issued by the President in order to protect the common interests of their members and to ensure the administration and follow-up of the rights granted by the FSEK, the collection of the fees to be collected and the distribution to the right holders, by taking over the rights to use the financial rights from the work or right holder with the contracts arranged in accordance with the article. ”
Article 42/5 of FSEK refers to the Law on Associations in terms of the legislation applicable to collecting societies. Accordingly, it is accepted that collecting societies are legally recognised as associations.
II. Establishment, Areas for Establishment of Professional Associations and Membership
Pursuant to Article 42/1 of the Code, collecting societies may be established by “real or legal persons who have the qualifications to be members of the collecting societies in the amount of four times the number of the original members of the compulsory organs in respect of authors or performing artists, and in the amount of two times the number of the original members of these organs in respect of producers or radio-television organisations”, and in order to operate as a collecting society, permission must be obtained from the Ministry of Culture and Tourism.
The areas where a professional association may be established are set out in Article 7 of the Regulation on Professional Associations and Federations of Intellectual and Artistic Work Owners and Related Right Holders (“Regulation”) and are as follows
I- With respect to authors;
a) Owners of scientific and literary works,
b) Owners of musical works,
c) Owners of fine art works,
d) Owners of cinema works,
e) Owners of processed and compiled works,
II- In terms of related right holders;
a) Performing artists,
b) Phonogram producers,
c) Radio-television organisations,
d) Producers making the initial identification of the films.”
The conditions for becoming a member of collecting societies are also set forth in the Statute, and anyone who meets the qualifications stipulated in the Statute may become a member of a collecting society.
Pursuant to Article 10 of the Regulation, only one professional association can be a member for each type of work in the same field. As an exception to this rule, authors, performing artists, sound carrier producers, radio-television organisations and producers of the first fixation of films are allowed to become members of different unions according to the types of works they create, perform or produce.
Article 11 of the Statute provides for three types of membership in collecting societies: Full member, beneficiary member and candidate member.
Pursuant to Article 12 of the Bylaws, full members shall fulfil the following conditions:
a) Being a real or legal person who is the author of the work or the owner of the related rights,
b) To have the capacity to exercise civil rights,
c) To comply with the criteria to be set by the Unions,
d) For producers or broadcasting organisations, to have been registered in the trade registry for at least six months and to have been engaged in actual production.
For legal entities, there is also the requirement of being established in accordance with the laws of the Republic of Turkey.
Pursuant to Article 13 of the Statute, the following persons may become beneficiary members:
a) Persons who did not create the work but who are authorised to use the financial rights of the work directly or through inheritance or transfer,
b) Their parents or guardians on behalf of those who do not have the capacity to exercise their civil rights.
Candidate membership is a type of membership for producers and broadcasting organisations that are within the six-month period specified in Article 12 of the Statute in terms of registration in the trade registry. During this period, candidate members cannot vote in the general assembly and cannot take office in the management organs.
III. Rights and Obligations
The rights of collecting societies are not explicitly regulated in the Code. The rights, and therefore the powers, of collecting societies are related to the scope of the authorisation certificate that authors and/or right holders shall provide to the collecting society in order to become a member of the collecting society.
One of the most important issues discussed in practice in terms of the rights of collecting societies is whether the collecting society has the capacity to sue on behalf of the author and/or right holder.
Pursuant to Article 5/1 of the Regulation on the Authorisation Certificate to be Granted to Collecting Societies (“Regulation”), “upon the granting of an authorisation certificate, collecting societies, which are authorised to use the rights subject to the authorisation certificate in the form of a full licence, are exclusively authorised for the administration and follow-up of these rights, collection and distribution of royalties.” Accordingly, in the event of infringement of the financial rights that the collecting societies have taken over the authorisation to use from the authors and/or right holders, they shall be deemed to have the capacity to file a lawsuit on behalf of the authors and/or right holders, if they are authorised to do so in the authorisation certificate.
As a matter of fact, the 11th Civil Chamber of the Court of Cassation also ruled that “in the event of infringement of a financial right, the right to file a lawsuit against the infringement in question, pursuant to Article 42/last of the FSEK No. 5846 amended by Law No. 4630 of 21/02/2001, the authority to pursue the rights of the authors and related right holders listed in the FSEK is given to the monopoly of the collecting societies established in accordance with this article, and it is prohibited to be pursued by other unions, associations and similar organisations” and accepted that the collecting societies have active litigation capacity[1].
The obligations of collecting societies are enumerated in Article 42/A of the Code:
- To notify the Ministry of all information regarding the works, performances, phonograms and productions they represent and their members and to update this notification, which is open to the relevant persons, every three months,
- To ensure the administration of the rights arising from the activities of the right holders who are members under equitable conditions,
- To distribute the revenues obtained from the activities related to the administration of the rights of its members to the beneficiaries in accordance with the distribution plans,
- To provide the relevant persons who make a written request with information about the works, performances, phonograms and productions they represent,
- To act in accordance with equity in relation to the rights they administer while concluding the contract, to provide discounts or payment facilities they deem necessary in terms of their own material and/or moral interests,
- To determine the fee tariffs for the rights that they provide the administration of in order to conclude a contract in due time and to announce the determined tariffs and any changes in these tariffs in due time,
- To have their accounts approved by certified public accountants.
IV. Determination of Tariffs
Pursuant to Article 41/3 of FSEK, collecting societies determine the tariffs regarding the payments arising from the use or transmission of works, performances, phonograms, productions and broadcasts, depending on the classification made in the sectors in which they operate.
Contracts to be signed between collecting societies and public places are made on the basis of the tariffs determined in this way or the prices to be determined as a result of negotiations that may be made by the parties. Agreements regarding tariffs are based on the calendar year and these tariffs are valid as of the beginning of the calendar year.
In the continuation of the said legal regulation, it is regulated that the tariffs are notified to the Ministry and announced to the public in the ninth month of each calendar year; and in the event that a consensus cannot be reached on the tariffs and a contract cannot be concluded in the tenth month, a request can be made by the collecting societies or professional organisations representing the users to negotiate these tariffs in the conciliation commission to be established by the Ministry until the end of this month at the latest. In the event that the contract is not concluded over the tariffs determined by the collecting societies, the parties may apply for judicial remedy.
Article 42/A of the Law regulates the principles governing the determination of tariffs. Accordingly, in determining the tariffs, “the tariffs shall be determined at a reasonable level, taking into account the adaptability of international practices to the economic and social conditions of the country, and the changes in the technological field, as well as the changes in the technological field, as well as the changes in the structure of the sectors in which the works, performances, phonograms, productions and broadcasts are created and used, “The classification, product prices in the relevant sectors and the share of these sectors in the gross national product, the frequency of use and/or transmission of works, performances, phonograms, productions and broadcasts, unit price or lump sum payment, payment schedule and similar issues” are taken as basis.
V. Competition
Pursuant to Article 42 of FSEK and Article 7 of the By-Law in parallel with this Article, it is possible to establish more than one collecting society in the same field in Turkey.
However, if there is a professional association operating in the same field, in order to establish another professional association in this field, a natural or legal person who has the qualifications to be a member of 1/3 of the total number of members of the professional association with the highest number of members established in that field, provided that it is not less than the minimum number of founding members stipulated in the legislation, must apply for the establishment of a new professional association in the same field.
Although the establishment of one collecting society for each field was previously permitted in Turkey, the amendment made to the legislation in 1995 made it possible to establish more than one collecting society in the same field. However, it is accepted that collecting societies are in a “dominant position” in terms of competition law, whether they are established more than once in the same field or not[2].
As a matter of fact, the decisions of the Competition Board generally indicate that the collecting societies are in a dominant position. In its dominant position analysis in one of its decisions[3], the Competition Board stated that the collecting societies mentioned in the decision “are the most important collecting societies in Turkey in their respective fields, they set common tariffs within the framework of a common protocol, therefore, it is only possible to pursue rights to a musical work by becoming a member of these collecting societies, individual artists who are not members of these collecting societies are negligible, and from the perspective of broadcasters, it is seen that broadcasters who do not have an agreement with these collecting societies cannot broadcast any music except for individual artists who are not members of the collecting societies, Furthermore, the court concluded that these collecting societies are in a dominant position by stating that “they have become a single interlocutor/source against broadcasters with the joint action protocol they have put into practice, although they are liable for the licensing of different rights, they act together within the framework of the joint action protocol, their bargaining power is very high, they constitute the most important power in the licensing of musical works, the demand flexibility of the customers is weak, etc. are factors that strengthen the dominant position analysis”.
VI. Audit
Pursuant to Article 42/B of FSEK, collecting societies are subject to the administrative and financial supervision of the Ministry of Culture and Tourism. Within this scope, the issues of whether the collecting societies fulfil their duties and obligations set forth in the Law on Collected Works, whether the collection or distribution is made in accordance with the agreements, and whether the tariffs are regulated in accordance with the principles set forth in the Law on Collected Works are subject to supervision.
In case of breach of these provisions, the Ministry of Culture and Tourism is authorised to issue warnings to the relevant collecting societies, to dismiss the collecting society as a precautionary measure, and to make appointments in place of the relevant members.
These provisions foreseen for collecting societies are also applicable for federations.
VII. Professional Associations Established in Turkey
According to the records of the General Directorate of Copyright of the Ministry of Culture and Tourism[4], the collecting societies and federations of collecting societies established and currently active in Turkey are as follows:
Federation of Professional Associations
Federation of Publishers’ Professional Associations (YAYFED)
Cinema
BSB Professional Association of Cinema Work Owners (BSB)
Turkish Professional Association of Cinema Work Owners (SESAM)
Professional Association of Cinema and Television Work Owners (SETEM)
Professional Association of Cinema Work Owners (SİNEBİR)
Professional Association of Film Producers (FİYAB)
Professional Association of Cinema Work Producers (SE-YAP)
Television and Cinema Film Producers Professional Association (TESİYAP)
Professional Association of Cinema Actors (BİROY)
Anatolian Professional Association of Cinema and Television Work Owners (ASITEM)
Screenplay and Dialogue Writer Cinema Work Owners Professional Association (SENARİSTBİR)
Music
Turkish Musical Work Owners’ Professional Association (MESAM)
Musiki Eseri Sahipleri Grubu Meslek Birliği (MSG)
Professional Association of Music Interpreters (MÜYOR-BİR)
Professional Association of Phonogram Producers with Associated Rights (MÜZİKBİR)
MÜ-YAP Professional Association of Phonogram Producers with Associated Rights (MÜ-YAP)
Professional Association of Phonogram Producers with Associated Rights (MÜYA-BİR)
Science-Literature
Professional Association of Owners of Science and Literature Works (BESAM)
Turkish Professional Association of Owners of Works of Science and Literature (İLESAM)
Professional Association of Informatics and Software Authors (BİYESAM)
Professional Association of Translators (ÇEVBİR)
Publishers Copyright and Licensing Professional Association (YAYBİR)
Turkish Printing and Publishing Professional Association (TBYM)
Professional Association of Publishers of Textbooks and Culture Books (DEKMEB)
Education Publishers Professional Association (EĞİTİMYAYBİR)
Radio-Television
Radio and Television Broadcasters Professional Association (RATEM)
Fine Arts
Professional Association of Fine Art Work Owners of Turkey (GESAM)
Theatre
Theatre Actors’ Professional Union (TOMEB)
[1] The decision of the 11th Civil Chamber of the Court of Cassation dated 27.06.2019 and numbered 2017/3201 Esas, 2019/4937 Karar.
[2] Intellectual Property Law, Ünal Tekinalp, 1st Edition, October 1999, p. 279
[3] Competition Board decision numbered 08-66/1064-419 and dated 20.11.2008(https://www.rekabet.gov.tr/Karar?kararId=45d9dbe8-d230-49fa-a9cb-4c6c4a63ef56)
[4] http://www.telifhaklari.gov.tr/Turkiye-de-Meslek-Birlikleri
