Are Only Ideas Protected Under the Law?
One of the issues that is often confused in practice is whether ideas alone can benefit from legal protection. Ideas, by virtue of being ideas, are not protected unless they are specifically brought into existence by their owner on a material basis.
According to Article 1/B of Law No. 5846 on Intellectual and Artistic Works, for an intellectual or artistic product to be considered a work under this Law, it must possess two elements. The first is that the produced material "bears the distinctive characteristics of its owner," and the second is that it "falls into one of the work groups listed by the law." First, considering the "element of falling into one of the work groups listed by the law," it should be noted that the Law on Intellectual and Artistic Works also lists different types of intellectual and artistic works, primarily grouping them under four main headings.
These four categories are: works of science and literature, works of music, works of fine art, and works of cinema. In order for intellectual and artistic products that fall under one of these categories to be recognized and protected as works under the provisions of the Law on Intellectual and Artistic Works:
Bearing the owner's unique characteristics
It has taken shape (it has acquired a structure that can be perceived from the outside)
It must be the result of an intellectual effort. The fact that the work is the product of an independent effort unique to its author means that it bears the individuality of its creator.
The fact that a work is the product of an independent effort unique to its creator means that it bears the individuality of its creator.
An intellectual work possessing these aforementioned elements will be considered a work under the provisions of the Law on Intellectual and Artistic Works and will be protected within the framework of the Law on Intellectual and Artistic Works. In this context, it is necessary to address the concept of distinctiveness:
Although there are differing opinions regarding the evaluation of the concept of originality, expressions such as "not being able to be created by everyone, being relatively independent from other works, creating a work different from what already exists even if it draws on previous works, being the product of the creator's own creative spirit" explain the concept of originality, and therefore, originality as an indispensable element of a work.
Whether an idea or a work of art meets the requirement of uniqueness is considered to be a condition that there must be a connection between the personality and creativity of the author and the work produced. Essentially, we can express the concept of uniqueness as being original, not ordinary, and possessing qualities specific to the author. Indeed, the 7th Criminal Chamber of the Supreme Court of Appeals, in its decision dated June 17, 1980, with case number 1980/2877 E. and 1980/3052 K., explained the concept of uniqueness as follows: “For a work to exist, it must bear the characteristic of its author, be the product of creative effort, and be of a nature that can be produced by anyone.” As a second element in the quality of being a work, when we consider the concept of the work taking shape on a material, it can be expressed as the manifestation, the shaping, of a thought that is the product of intellectual effort. Therefore, mere thought alone does not fall into the category of a work and, unfortunately, will not be protected as such. For example, the author's thought and expression of the idea that they will produce a literary work is only the dimension of thought. This intellectual dimension cannot be classified as a work of ideas or art and protected under the Law on Intellectual and Artistic Works. For intellectual and artistic products to qualify as works, they must have a form and acquire a material dimension. In this respect, ideas, perhaps contrary to general understanding, are not protected under Law No. 5846 before they are brought into existence.
HOW IS IT DETERMINED THAT A WORK POSSESSES THE ORIGINALITY REQUIRED BY LAW AND REFLECTS THE CHARACTERISTICS OF ITS OWNER?
While it is necessary to make various distinctions according to the types of works in this regard, it should be noted that typical examinations should be made in each specific case. In this regard, the 11th Civil Chamber of the Supreme Court of Appeals, in its decision dated May 24, 2022, with case number 2020/8509 E., 2022/3996 K., stated: "The element of 'reflecting the uniqueness of its owner,' that is, originality, in a work lies in the fact that if that work had been created by someone else, it would not have been done in the same way and with the same characteristics. In the case of screenplays, the uniqueness should be sought in the overall impression and impact created by the work as a whole, based on the plot, characters, and typologies created by the person who wrote the novel/screenplay, and the actions and dialogues assigned to those characters, all starting from the same main plot."
"For a work to reflect the unique style of its author does not mean that it is original in every aspect, every sentence, from beginning to end. Originality is not a requirement for the work as a whole; relative originality is sufficient."
Thus, explanations have been given regarding the concept of distinctiveness and the element of distinctiveness, and it has been deemed sufficient for originality that the work as a whole does not possess distinctiveness, but only the general impression or, conversely, even a part of it, is qualitatively distinct. Therefore, it can be said that the Supreme Court's prevailing view is that each specific case should be interpreted differently in this regard.
COULD EVEN DRAFTS OF A WORK BE CONSIDERED AS A FULL WORK AND PRESERVED?
For an intellectual or artistic product to be considered and protected under the Law on Intellectual and Artistic Works, it is not necessary for it to be completed. However, in this case, the intellectual or artistic product must have reached a certain stage. For example, a literary work with only a few pages written will not be considered a work. Two criteria can be considered for a work to be categorized as incomplete. The first is that if it is a draft, regardless of whether it has been revised or not, it is considered an incomplete work. In this case, a work exists, but it is incomplete. The other criterion is that even if it is not a draft or sketch, if the work has been started and the author's unique style is present in the final product, it will still be considered an "incomplete work." In summary, drafts, sketches, and various artistic experiments represent the shaping of a work. However, regarding the detail of abstract thought and ideas, the 4th Civil Chamber of the Supreme Court of Appeals, in its decision dated July 1, 1978, numbered 1977 E., 1976/5913 K., stated that abstract thoughts and ideas do not constitute works of art, and that an idea or artistic work does not acquire the quality of a work as long as it remains in the form of an idea.
The fourth and final element to be mentioned is that the product must be the result of an intellectual effort. Under the Law on Intellectual and Artistic Works, for a product to be considered a work of art, it must be the product of intellectual effort and activity. The existence of this element necessitates that the work be created by a human being. Therefore, it is clear that products created by nature, animals, and plants on their own cannot be considered works of art. For example, an aesthetically pleasing appearance created by nature's own cycle would not be accepted as a work of art.
The main point of contention here is whether a product created using a machine or device should be considered a work of art under the Law on Intellectual and Artistic Works. Although opinions differ on this matter, the question of whether a work of art is considered to have been created if it could be produced entirely by machine activity, regardless of who created it, has become a subject of debate.
From the heart of the matter, in evaluating whether an intellectual or artistic product qualifies as a work under the Law on Intellectual and Artistic Works, it is necessary to acknowledge the presence of all elements together. When evaluating a product whose status as a work under the Law on Intellectual and Artistic Works is subject to debate in legal doctrine, interpretation should be made based on the specific characteristics of the case to determine whether it represents a particular style and intellectual effort. In summary, when evaluating a work, criteria that are not open to debate or disagreement should be considered first, and a detailed and careful evaluation should be made regarding elements that may contain subjective qualities such as individuality and intellectual effort.
ARE PRODUCTS DESIGNED BY ARTIFICIAL INTELLIGENCE CONSIDERED WORKS OF ART?
For the element of intellectual effort to be considered present, it must reflect the individual's intellectual effort. This discussion is frequently encountered today with regard to visual effects, drawings, and designs created by AI (artificial intelligence). Unlike existing natural intelligence, AI, or artificial intelligence, is a type of intelligence displayed by machines. While it is often mentioned in relation to graphic designs created without human aesthetic input, the current state of technology and the development of platforms where intellectual products are designed indicate that it is time to re-evaluate the elements of what constitutes a work of art as defined by Law No. 5846. While it is clear that an idea or abstract thought cannot be considered a work of art, and that the concept of a work of art under the Law on Intellectual and Artistic Works applies only to products requiring intellectual effort, possessing distinctive characteristics, and having a formed form, new definitions are now needed in the legislation regarding the fate of artificially formed works of art concerning the originality of their creator.
