Turkish Law Blog

Trying to Find Out the Knowns in the concept of “Originality” in Intellectual Property Law: An Analysis of the term of “Originality” in the Judgments of the Turkish Court of Cassation

Ömer Başar Ömer Başar/ FBK&Partners
02 December, 2019
866

I. Introduction

The term “originality”, as a requirement for the existence of a work all around the globe, constitutes the very core of the term of copyright and so of the intellectual property law. That’s to say, it is agreed in the domestic laws of many states and in the relevant international agreements that to name something as a “work” for the purpose of copyright, it should meet the criterion of “originality” alongside with other criteria sought in the relevant laws and agreements. Keeping in mind that the criterion of “originality” is a common condition under many domestic laws and under almost all relevant international agreements, the definition and interpretation of the term gain tremendous importance. Yet, up to the moment, there has not been established a precise definition and interpretation for this term in any state law. Instead, the term has been attempted to be explained in ambiguous words which are far away from setting a standard. As a result, the notion of “originality” is still a hot topic the borderlines of which are still attempted to be drawn. In this article, being aware of the impossibility of describing and construing the notion in an absolute manner, the effort will be put in so as to figure out what was/were taken into consideration by the Turkish Court of Cassation when it comes to construing the concept. In this regard, a few judgments of the Court will be analyzed. While doing this, the elements embraced by the Court will be compared with the ones adopted by the European Court of Justice (“ECJ”) in the two judgments of it, namely Football Dataco versus Yahoo[1] and Viejo Valle versus OHIM[2]. As a result, the study will attempt to detect and list all the knowns of the notion in accordance with the judgments of the Court of Cassation.

II. The Relevant Judgments of the Turkish Court of Cassation on “Originality”

Unfortunately, not in too many judgments of the Court there exists an explanation for the term of originality. Among these few, only the ones which will work out for the following statements will be touched upon. The decisions will be given in chronological order in order for one to observe the alterations, if any, in the course of the Court’s interpretation of the term by the time passing.

The first[3] decision[4] sums up the difference between a derivative work, plagiarism and independent work. In accordance with this judgment, if the quotations and benefitting from a work dominates the new work, there will be neither a pure legal quotation nor a derivative work. That’s because, in such a case, the second work will have no originality at all. As a result, the existence of plagiarism will be at issue.

The second decision[5], which is about how to puzzle out whether two works are independent or not, in its core, reaches the following conclusions:

  • As a first step, the originality of the work which is alleged to be copied or benefitted from should be described.
  • Next, the question of whether really the following work has benefitted from the originality of the former work will be attempted to be answered. If the answer is negative, it will be concluded that the second work is an independent work. On the other hand, if the answer is positive, whether the level of benefit has surpassed the level of inspiration will be answered.
    • If the level is below such standard, the second work will be deemed as an independent work within which there are quotations from the first work.
    • If the level is above the level of inspiration, whether the assent of the author or the right holder of the first work for such an act exists or not will be at issue. If the consent is not granted, the second work will be either a derivative work that cannot be used for commercial purposes or pure plagiarism.
    • If the consent is granted, the second work will be either a derivative work that can also be used for commercial purposes or a mere legal quotation.

The Court, in the second decision[6], additionally grants the following statements:

  • Whether two works are independent or not shall be determined according to the reports given by the experts in the related field.
  • While trying to find out whether one has benefitted from the originality of another work in its work, it should be kept in mind that pure ideas, i.e. ideas that are not expressed in a way that is convenient for a third party to, directly or indirectly, be able to perceive the work, cannot meet the originality requirement. Instead, what meets such requirement is the ideas that are, in a way or another, expressed. That’s why, one should consider the expressed ideas, but not the mere ideas, so as to detect the originality of a work.

The following decision[7] gives some clues about the existence of originality. Pursuant to this judgment, so as to reach a conclusion that originality of a work is used by another work, it is not necessary that the former work is, wholly or partly, imitated by the second work. What’s important, looking at the work at its entirety, is whether the second work has used the originality of the former work or not. Provided that the level of usage of the originality of the first work exceeds the level of inspiration, even if there is no imitation, the second work will not be deemed as an independent work.

In this judgment it is also stated that the term of originality should be regarded as an issue beyond the knowledge of the judge[8]. That’s why, the matter of originality should be solved according to expert reports.

The fourth decision[9] is just a summary of the second decision for the purpose of our paper.

The fifth decision[10] points out the difference between normal work and artistic work. It expresses the difference as the lack of “aesthetics” in the normal works. In other words, while a normal work does not have “aesthetics”, artistic work has to have this peculiarity. In this regard, one should notice that the notion of “originality” is different from the concept of “aesthetics”. The Court, aside from these, states that the aesthetic side of an artistic work derives from the fact that the work is unique and that it does not have any duplications.

The sixth decision[11] describes the notion of originality as “not being usual, requiring a certain amount of creativity”. The decision, however, does not analyze the concept further. The seventh and the last decision[12] provides a criterion of originality for musical works. In the decision, it is stated that whether a musical work is original or not should be determined according to the point of view of a regular listener.

III. The Relevant Decisions of ECJ

In this section, two judgments of the ECJ will be analyzed in chronological order. According to the first decision, Football Dataco v. Yahoo! UK[13], to name something as work, no requirement other than originality should be, e.g. aesthetics, qualitative criteria, sought. For a database, protection is solely available for the structure, i.e. the selection and arrangement of the data, but not for the content or the elements of the database, namely the data itself. Originality is available when the author expresses its creative ability in an original manner by making free and creative choices, namely stamping its personal touch. Plus, in a case that there is no room for creative freedom, it will be impossible to make free and creative choices. Consequently, no “work” will be at issue in such a case. The term of originality is different from the intellectual efforts and skills put in, the amount of labor and skills used, and that important info was added to the work or not. Interpreting the notion of originality falls within the scope of the competence of national courts. That’s why ECJ cannot decide whether a work is original or not.

In the second decision[14], the Court firstly explains the burden of proof in the case of originality. Accordingly, anyone claiming that work lacks originality bears the burden of proof. Apart from this, originality is deemed to be existing if a work reflects the personality of its author. Furthermore, while detecting whether the originality of work is imitated by another, the similarity between these works at their entirety is not decisive. What’s decisive, instead, is whether the creative content of the work is used by the other or not. Moreover, lack of artistic character is not the same as a lack of originality. While determining whether there exists a work or not, the artistic character is not considered. Lastly, the Court takes “the scope of freedom while creating the work” into consideration while analyzing whether a work has used another’s creative content or not. Pursuant to this consideration, the Court rules that the less an author has creative freedom, the less its work’s originality is. In this regard, functionality can be seen as one of the elements restricting creative freedom. That’s because functionality restricts creative freedom. Therefore, the effect of the originality of a more functional work, which is to prevent others from using similar peculiarities with this work, will be relatively less.

IV. An Assessment of the Judgments of the Court of Cassation

Digging deep the judgments of the Court, one will realize that even these judgments contain very little about originality. Instead, the decisions deal with the contexts in which the concept is in use.

As mentioned above, the first and fourth decisions’ subject is the difference between independent work and a derivative work, and it explains the role of originality in such differentiation. Yet, in terms of interpretation and definition of the concept, nothing was stated in these two judgments.

The first part of the second decision is identical to the first and fourth decisions. Thankfully, one is able to find some explanations about originality in the second part of the second decision. According to this, the detection of originality in the case will be decided by the expert reports in the related fields. From such a statement, two corollaries can be deduced. The first is that the term is flexible and should be interpreted and described differently in each case. That means there is not a constant and absolute definition of the term as it is changeable from a case to the other. The second corollary is that, according to the Court, the term should be determined by experts. While there is no doubt factual matters may go beyond the knowledge of the Court, legal assessments are still within the Court’s mission. As to originality, it should be noted that the concept has two sides, legal and factual sides. Though the Court’s decision is in line with the factual side, it does overlook the legal side of the concept. That’s why, the Court, by stating that originality will be decided by experts, should not abstain from making legal assessments about the term. What’s more, if the Court leaves the issue to totally be determined by experts, then the basic explanations it has made in its judgment will be contrary to its decision. That’s because, if the subject is to be completely decided by experts, then the Court should have nothing to say about the term. To my mind, the Court uses this statement/s as a way to refrain from commenting on the issue. This attitude of the Court is likely to be because of the flexibility of the term. The Court may avoid commenting on the term so as to make its comments and interpretations consistent with the flexible nature of the term. However, this should not result in an approach adopted by the Court with which the Court refuses to make any description or interpretation. The Court should, at least, shed a light on the term to the extent its comments are legal and compatible with the flexible nature of the term. Such an attitude will also be compatible with the approach adopted by ECJ in its first judgment explained above. Firstly, that’s because ECJ does not avoid interpreting the term by asserting that it is a purely factual notion. Secondly, as can be seen above, in spite of the fact that ECJ points that the matter is in the scope of the competence of the courts of the Member States, it, nonetheless, grants some basic explanation about the term such as “personality of the author”, “creative choices” and “stamping personal touch”. ECJ’s other observed method, exclusive method, while interpreting the term is to reveal the factors - which are intellectual effort, labor, skill and creative freedom - which cannot be considered while describing the term. To comment on the rest of the second judgment of the Court of Cassation, it was expressed by the Court that originality is only available for the expressed ideas. As a consequence, mere ideas are not protected as works under copyright due to lack of originality. This is consistent with the fundamentals of copyright. Yet, the added value of this judgment is not too much as it actually does not give a definition or interpretation about originality. It, instead, indicates the second requirement, which is the expression of an idea, for a work to come into existence under Turkish Law. Nonetheless, since it provides some information about how to detect originality, it remains to be noteworthy.

The third decision explains that similarity between two works, partially or wholly, does not necessarily result in the similarity between the originality of these two works. To have a say on this judgment, it is fairly accurate. Yet, it should be added that although similarities between works do not necessarily refer to a similarity between their originality, the similarity between works may have some effects with respect to the similarity between originality of works. A very similar interpretation is held by ECJ in its second decision shown above.

The fifth decision repeats the difference between originality and aesthetics. In this sense, apparently, originality, unlike aesthetics, does not mean being unique and does not require work is unique. This conclusion is an obvious conclusion that can be observed via the wording of the Code[15]. Truly, the terms of originality and aesthetics are quite different terms which do not need any interpretation in terms of their interaction. Indeed, there is not much debate about the divergence of these two notions, either. That’s why, although one may welcome the Court’s effort to interpret the term by comparing it with other relevant terms, e.g. aesthetics, the proceeds of these efforts is quite little as the judgments do not find anything new with regard to the term, but repeat what is already revealed in the Code. The second decision of ECJ can also be criticized on the same ground.

The sixth and the seventh decisions of the Court of Cassation has dealt with the concept by providing a few criteria, namely “not being usual”, “a certain amount of creativity” and “the point of view of a regular listener/addressee”.

Lastly, of the outcomes deduced from ECJ decisions, one should check which ones would have to be adopted by the Court of Cassation if it had to comment on.  The definitions about the term made by ECJ such as “personality of the author”, “creative choices”, “stamping personal touch” would not be taken into consideration. The reason is that these are the opinions and interpretations of ECJ, and the Court of Cassation quite might have a different interpretation or description for the term. Yet, the exclusive method, not the elements excluded by ECJ – intellectual effort, labor, skill, creative freedom-, but the method itself, adopted by ECJ had better be adopted by the Court of Cassation, as it is necessary to embrace such a method to remain in line with the flexibility of the term. Lastly, the way the burden of proof is set in the second decision of ECJ is also valid for Turkish Law. According to the laws of civil procedure, the one basing its claims or plea on a fact should prove the existence of the fact.

V. Conclusion: The List of Knowns

As stressed above, under this section the widest list of knowns in accordance with the judgments of the Court of Cassation will be drafted. After the evaluations, all the knowns in the notion shall be listed as below:

  • The term is not a stable term. Instead, it is a flexible term. That’s why it shall be described pursuant to the case at hand.
  • The factual assessments for the term will be held by experts. The legal assessment should be held by courts. Courts should perform their duty according to the flexible nature of the term. For the purpose of such a legal assessment, the “exclusive method” mentioned above seems as a convenient method for the interpretation of the term.
  • Originality is only available for the expressed ideas. The mere ideas do not have originality.
  • Although the similarity between works may have some effect on their originality, that is not a decisive factor in terms of similarity between their originality. The originality of works should be analyzed separately from their scripts, expressions.
  • Aesthetics and originality are two different concepts. Originality does not necessarily entail a work to be aesthetic or unique.
  • Anyone claiming that work lacks originality bears the burden of the proof.
  • For a work to be accepted as original, it has to bear a certain amount of creativity. It should not be usual.
  • While deciding upon originality, the point of view of a regular listener/addressee should also be taken into consideration.

Bibliography

  • Karahan, Sami / Suluk, Cahit / Saraç ff., Temel, Fikri Mülkiyet Hukukunun Esasları, 3. Edition, Seçkin Press, 2013, p.1-152.

Case Law

Judgments of the Turkish Court of Cassation

  1. Yargıtay Hukuk Bölümü İBK 18.2.1981, E.1980/1, K.1981/2
  2. Yargıtay 11. HD E.2005/14088 K.2007/963 T.29.1.2007
  3. Yargıtay 11. HD E.2007/ 7226 K.2008/9041 T.7.7.2008
  4. Yargıtay HGK E.2011/11-401 K.2011/441 T.22.6.2011.
  5. Yargıtay 11.HD E.2011/8991 K.2012/14712 T.1.10.2012.
  6. Yargıtay HGK, E. 2017/63, K. 2019/86, T. 07.02.2019.
  7. Yargıtay 11. HD, E. 2015/10053, K. 2016/4939, T. 02.05.2016.
  8. Yargıtay 11. HD, E. 2015/13493, K. 2017/1474, T. 13.03.2017.

Decisions of ECJ

  1. Judgment of the General Court ( Second Chamber ), Viejo Valle, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Cases T-566/11 and T-567/11, 23 October 2013.
  2. Judgment of the Court (Third Chamber), Football Dataco Ltd and Others v Yahoo! UK Ltd and Others, Case C-604/10, 1 March 2012.

[1] Judgment of the Court (Third Chamber), Football Dataco Ltd and Others v Yahoo! UK Ltd and Others, Case C-604/10, 1 March 2012.

[2] Judgment of the General Court ( Second Chamber ), Viejo Valle, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Cases T-566/11 and T-567/11, 23 October 2013.

[3] Yargıtay Hukuk Bölümü İBK 18.2.1981, E.1980/1, K.1981/2.

[4] This judgment is of special jurisprudence. That’s to say, unlike the rest of judgments of courts, this judgment has a binding effect on courts.

[5] Yargıtay 11. HD, E.2005/14088, K.2007/963, T.29.1.2007. Also see Yargıtay HGK, E. 2017/63, K. 2019/86, T. 07.02.2019.

[6] Yargıtay 11. HD, E. 2005/14088, K.2007/963, T.29.1.2007.

[7] Yargıtay 11. HD, E.2007/7226, K.2008/9041, T.7.7.2008.

[8] Also see Yargıtay 11. HD, E. 2015/10053, K. 2016/4939, T. 02.05.2016.

[9] Yargıtay HGK E.2011/11-401, K.2011/441, T.22.6.2011.

[10] Yargıtay 11.HD E.2011/8991, K.2012/14712, T.1.10.2012.

[11] Yargıtay 11. HD, E. 2015/12923, K. 2017/2724, T. 09.05.2017.

[12] Yargıtay 11. HD, E. 2015/13493, K. 2017/1474, T. 13.03.2017.

[13] Judgment of the Court (Third Chamber), Football Dataco Ltd and Others v Yahoo! UK Ltd and Others, Case C-604/10, 1 March 2012.

[14] Judgment of the General Court ( Second Chamber ), Viejo Valle, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Cases T-566/11 and T-567/11, 23 October 2013.

[15] Turkish Law No. 5846 on Intellectual and Artistic Works.


 

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