INTELLECTUAL RIGHTS OF ARCHITECTS

In order for an intellectual product to be accepted as a work, according to the dominant opinion, it must be included in the works listed in Article 1/1 of the FSEK (objective condition) and it must bear the characteristics of its owner, in other words, it must be “original” and “creative” (subjective condition). While architectural projects are protected as works of science and literature, the construction of an architectural project with an aesthetic quality benefits from the protection of FSEK as a work of fine art. In order for a work of fine art to benefit from the protection of copyright law in terms of the objective element, it must have an aesthetic quality.
The interior design or exterior appearance of the building may give the work of architecture a special character, and the general composition of the building may also give the work a special character. The Court of Cassation accepts issues such as the uniqueness of the structure, its being different and unique from other structures, and the aesthetic value of the building ensemble as criteria for the determination of aesthetic value. Moreover, although all the characteristics of the German Federal Postal Administration’s central building were determined by the directive, the architect managed to add the element of individuality to the design of the windows and ventilation holes.
Copyright law defines the execution (construction) of architectural projects as reproduction, and the work resulting from reproduction is generally not recognized as a separate work. However, the exception to this rule is when the structure resulting from the execution of architectural projects is a work of fine art with aesthetic qualities. Contrary to the general rule, copyright law recognizes the work of fine art resulting from the construction of the architectural project as a separate work. The Court of Cassation, in the lawsuit filed by the architect, who is the author of the architectural project, for the refusal of the change in the structure, determined that the architect does not have an intellectual right in ordinary structures, which are reproductions of the architectural project. If the architectural project is prepared by an architect, this scientific work belongs to the architect who drew it. If more than one architect worked in the field of implementation of this project and the architects who participated in the project made an intellectual effort and created a specialty and this work cannot be partially examined and separated, it should be accepted that the architects working together on the work of fine art are joint owners. If this association of architects is under the roof of a legal entity, the intellectual rights will belong to the legal entity. (FSEK Article 10) In order for the partnership in the ownership of architectural works to be in the form of joint ownership, a work must be divided into parts and each part must be evaluated jointly in terms of specialty. And according to Article 621 of the TCO, due to the reference made by Article 10 of the FSEK to ordinary companies, it is accepted that all of the architects have joint ownership of the entire work, regardless of the quality and quantity of the intellectual contribution made by the architects. The association of authors must take its decisions unanimously.
After the architectural project is drawn and reaches the stage to be considered within the scope of the work, the architect has material and moral rights arising from the ownership of the work. In this sense, the architect, who is the right holder, has the right to file a lawsuit for the refusal of infringement, a lawsuit for the prevention of infringement, and a lawsuit for material and moral damages.
A work of architecture is the structure that has emerged as a result of the implementation of the project. According to this law, architectural works are works of fine art. However, in order for a building to be considered as a work of fine art within this scope, it is stated that it must have aesthetic values and bear the architect’s specialty. In the event of an attack on the moral rights of the architectural work, the author may file a lawsuit for the prevention of the attack, request an explanation that the change in the work was not made by him, request the removal of his name in the work, request the restoration of the change in the work. And again, as in the case of the project, there is the right to file a lawsuit for the refusal of infringement, a lawsuit for the prevention of infringement and a lawsuit for pecuniary and non-pecuniary damages.
Pursuant to Article 16/2 of FSEK; during the transfer of the financial rights related to the work, the author may also authorize the owner of the work to make changes in the work with a written document or a contract. In addition, the building owners who have transferred the rights of processing, reproduction, representation or dissemination from the author may make the necessary changes in the work in order to exercise these rights. However, if the changes objectively lower the honor and reputation of the author or impair the quality and character of the work, the author (even if he has given prior permission) may resist these changes and prevent the work from being made available to the public. A complete waiver of the author’s authorization in this regard by contract is also null and void pursuant to Article 16/3 of the Code.
According to the Court of Cassation, the owner may make changes arising from necessity and need (just cause). However, these changes must not damage the honor and reputation of the author and must not impair the integrity of the work. As far as we have been able to determine, after 2005, both in the doctrine and case law, a broad interpretation of the concept of just cause has started to be preferred. Whether there are justifiable reasons for the modification of the structure should be examined individually in each concrete case, taking into account the criteria to be introduced by case law.