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CONCEPT OF WORK OF MUSIC IN TURKISH LAW 
Ramazan Çakmakcı *

 
The place of music in national and international law, its relationship with other branches of law and legal developments related to music will be discussed in these pages titled “Music and Law” which will regularly appear in every issue of our magazine. Thus, readers who will follow these pages will receive important information about the relationship of music and law, and will be able to use that legal information in their concrete works and protect their rights.     

What is Music?
For a sound to be counted as music, it is necessary for the sound to emerge as an artistic form in a certain period of time, to acquire a form and motion, and ultimately to affect the audience's world of emotions and thoughts. Whether the sound is from a human or an instrument, whether it is short / long or high / low, whether it involves silence, or whether it is monophonic / polyphonic is not the decisive criterion for qualifying a sound as music.  To put it shortly, if we influence the emotions and thoughts of people with writing, we are speaking about literature, if we influence them with colors we are speaking about painting and if we influence them with sound we are speaking about music. Music is one of the forms of art. 

Etymology (Origin) of the Words Music and Musiki 
    Correct understanding of the concept of music is very important. For this reason, we will first address the word "music". When we look at the etymology of the word music in our language we come across the French language. The word music is derived from the French word "musique". The French word in turn is derived from the old Greek word "mousikē μουσική" which is originally derived from the old Greek word "Moúsa Mούσα" meaning “source of inspiration" with the suffix “ikos”.
    When we look at the etymology of the word "musiki", we come across the Arabic language. The Arabic word "mūsīḳī " or "موسيقى/موسيقا is derived from the verb "art of". And that word is based on the ancient Greek word Müz”, i.e “Moûsa” which is the name of the goddess of art, fairy of inspiration in the Greek mythology. 
The reason for the use of the word "music" more extensively than the word "musiki" today is that the eastern culture, which had been influential in the past, was replaced by the western culture along with the westernization of the Ottoman culture.

Relationship of Music with Law 
Law, in short, may be defined as the whole set of rules governing the relations of people and institutions with each other. Laws are the initial written source of the legal system. Music is an artistic form before anything else, and it falls under the scope of the "Law on Literary and Artistic Works" No. 5846, which is the basic law related to this field. 

The Law of “Literary and Artistic Works" developed under the framework of that law contains the rules for the rights of works of music and their authors and the protection of those rights. We prefer to say "Music Law" to that part of this law branch related to music.

 The concept of “Law of Music” basically covers ensuring:
    a) Protection of the rights on the work of music and the rights of the right owner of the work of music and the neighboring rights holder against violations and exploitation,
    b) To create opportunities to provide economic benefits to those who have rights on the work of music,
             (c) To prevent reproduction or adaptation of the work of music without the permission of the rights holders,
    d) Introduction of the work of music to the public at the request of the rights holders.

In order to bring the above mentioned rights and the rules to agenda, what is first of all necessary is the emergence of a work of music under the music law. It will be useful to say something shortly about the Law on Literary and Artistic Works No. 5846 which will be constantly on the agenda before making explanations about the concept of work of music.


Law on Literary and Artistic Works No. 5846 (FSEK)
    Law No. 5846 on Literary and Artistic Works (FSEK) was adopted by the Turkish Grand National Assembly on 5/12/1951 and published in the Official Gazette dated 13/12/1951 and numbered 7981. The law was amended by a number of laws over time and some of its articles were canceled by the Constitutional Court. The abbreviation of the law is "FSEK".

    Full and up-to-date texts of the Turkish laws are available at www.mevzuat.gov.tr, the website of the Legislation Development and Publication Directorate of the Office of the Prime Ministry. Our readers can have access to the full and up-to-date text of the Law on Literary and Artistic Works No. 5846 from the following internet address;

http://www.mevzuat.gov.tr/MevzuatMetin/1.3.5846.pdf

 

The Concept of Work and Work of Music 
The first legal regulation in this field in the world is the "Bern Convention" dated 09/09/1886 for the Protection of Literary and Artistic Works. In the second article of the Bern Convention, two features are mentioned for the genres of works. These are "original" and "product of creative thinking". In the Bern Convention, genuine works of art are listed and "verbal or nonverbal musical compositions" are indicated among them.


According to the Universal Copyright Convention signed in 1952, "work" must be born out of human thought. Although the definition of the work was not made in this convention, the concept of "proprietary of literary and scientific works containing music" was included.

In the Rome Convention of 1962, definitions of terms are provided such as "performer artist", "phonogram", "record producer", "reproduction", "radio & tv publications" which are closely related to music. 

Turkey, which accepted the Bern Convention, published the Law No. 5846 on Literary and Artistic Works (FSEK) on 1951. The first version of the article 1 of this law is below; 

"Article 1 – According to this law, work means all kinds of literary and artistic products bearing the characteristic features of the author and considered to be scientific, literary, musical, dramatic or cinematographic works in accordance with the following provisions. "


    As can be seen, works of music are described as works within the scope of FSEK. According to this article, "work" must have the characteristic features of its author and be clearly included in the law.

    The fact that the work bears the characteristics of the author means the work being original/authentic. Otherwise, it would not be a work but an imitation. The Decision of the 11th Civil Department of the Court of Cassation No.2004/12672 K. states that in order to determine whether it is a work at all, it should be investigated whether or not an independent effort and work is made and whether or not it is authentic. 

    The current Article 3 of the Law on Literary and Artistic Works is titled “Works of Music" and the works of music are defined as "all kinds of verbal and non-verbal compositions” in this article.

    In our next issue "the basic rights of the author of work of music” will be addressed.

    * Attorney, Chief Editor of the Magazine “Legal, Intellectual and Industrial Rights” 

    Communication with the author; ramazancakmakci@gmail.com