COMPETING INTERESTS OF THE ARCHITECT AND THE PROPERTY OWNER UNDER TURKISH LAW
The competing rights of the architect and the property owner over an architectural work have long been debated among practitioners and scholars in many jurisdictions including Turkey. In line with the Berne Convention for the Protection of Literary and Artistic Works, the Turkish Intellectual and Artistic Works Law No. 5846 (“Law”) grants authors an exclusive right of authorizing adaptations, arrangements, and other alterations of their works. An architect’s copyright protection over the architectural work, however, often clashes with the interests of the property owner. Striking a balance between these two competing interests has set a challenge for Turkish courts in the past years and may still be open for further discussion to provide foreseeability for the concerned parties and encourage architectural creativity.
1. Brief background information on copyright protection over architectural projects and works
Under article 2 of the Law, architectural plans, drawings, and designs are regarded and categorized as “Works of Science and Literature” along with other scientific maps, technical and scientific photography, geographical and topographical models, and similar works. The author of these literary works can benefit from moral and economic rights even if such works do not possess an aesthetic value, as long as they bear the character and originality of the author. On the other hand, architectural works, as the outcome based on an architectural project, are categorized and regarded as “Works of Fine Art” which must possess aesthetic value to benefit from the copyright protection under the Law. Accordingly and although the architectural plan is protected as a scientific work, this protection will extend to the architectural work itself only if it possesses artistic value. This will also entitle the author to a protection tool foreseen particularly for copyright infringement relating to works of fine art, that is the possibility to request restoration in addition to monetary damages.
In fact, the author of an architectural work has the exclusive economic right to adapt or modify their work. Therefore, in principle, if the architectural work bears the character and originality of its author and carries aesthetic value, it cannot be altered or modified without the consent of the author. However, the architect of a regular building without aesthetic value will not be able to prevent any alterations to the building since copyright protection is limited to the architectural project and does not extend to the building.
2. Progress of the Turkish Supreme Court’s decisions
Prior to 2005, the Turkish Supreme Court had embraced a highly conservative approach, by requiring the architect’s consent for any alterations on an architectural work without discussing whether it can be deemed as “a work of fine art”, i.e. whether it has an aesthetic value.
In a decision from 1998, the property owners of a building in a mass-housing settlement that was based on an awarded architectural project were sued by the architect when the outer walls were painted in a color other than the one the architect had originally planned. The Supreme Court found that such deviation from the architectural project violated the architect’s copyright. This ruling did not make any distinction between the copyright protection over the architectural project/drawing and the architectural work/building itself and therefore the Court considered the deviation from the architect’s plans as a violation of the Law.
Ever since a decision of 2005 , the Turkish Supreme Court significantly shifted its approach by clearly distinguishing the authors` copyright protection over the architectural project and the architectural work. Under this decision, the architect claims moral compensation from the property owner for the alterations carried out without his/her consent, however, the lower court rejects such claim based on the grounds that such alterations does not infringe the architect’s copyrights since; i) the building, which was based on the architect`s project, does not possess aesthetic value, ii) the copyright protection is therefore merely on the architectural project as a “work of science and literature” under article 2 of the Law and iii) the defendant did not carry out any alterations on the architectural project. The Supreme Court approved this decision, setting a precedent that is still in effect today. Accordingly, the architect`s copyright protection can extend to the architectural work itself provided that it possesses aesthetic value, otherwise will be limited with the architectural project.
3. Required alterations based on functionality
Adapting a more flexible approach after 2005, the Turkish Supreme Court also established that even if an architectural work that is categorized as work of fine art, it can be altered by the property owner without the consent of its author if such alteration is required to maintain the functionality of the work.
Turkish Supreme Court has upheld another significant decision in this regard which has set precedent for the copyright claims of the architect against alterations on functional buildings. In this decision, the heirs of an architect claim moral and material compensation because the hotel chain owner had not obtain their consent for the prospected alterations. The hotel was built in 1970 and was transferred to a new owner after approximately thirty years (judging by the date of the decision) in worn-out condition. The new owner of the hotel had planned certain renovations some of which were required by changing construction laws such as changing the doors, and other maintenance, repair and paint work. The lower court rejected their claim and found that although the hotel is evidently an architectural work as a work of fine art, it can still be renovated under certain conditions without requiring the author’s consent, since these alterations were inevitable to fulfill its function as a hotel. The lower court rejected the plaintiff’s claim and the decision was approved by the supreme court. This decision has indicated that the works of fine art with artistic value can be altered without the consent of the author if such alterations i) are required to maintain the safety of the building and to expand the used areas, ii) are carried out in view of changing comfort and service expectations, iii) do not endanger the integrity of the project and building and iv) do not damage the honor and reputation of the author.
In brief, the court precedent referred above has shown that the owner of a functional building, that can be categorized as a work of fine art with aesthetic value can be altered based on changing needs provided that such alteration is actually to required to meet those needs, does not endanger the integrity of the building and the honour and reputation of the author.
The Supreme Court decisions have shown a significant shift over the years. With an effort to strike a balance, the courts have abandoned the conservative approach requiring the consent of the architect for every modification. However, some scholars and practitioners consider that the recent court precedents are now favorable for property owners enabling them to make modifications simply by relying on the reasoning of maintaining the building’s function.
It is also surprising that the courts often rely on expert opinions for the assessment of whether an architectural work possesses artistic value and do not provide an objective test that will surely provide more foreseeability for the concerned parties.
Architecture is a form of art that people are regularly exposed to during their lives, unbeknownst to them most of the time. Therefore, other than the architect and property owner, architecture should concern a larger circle, whom we can refer to as stakeholders. Intellectual property laws and their interpretation play a vital role in incentivizing the artist and other sector components which then would lead to welfare of all stakeholders.