Mimari Avan Projelerinin Hukuki Niteliği

*Gizem Ak Yürek, Ebru Ece Saka

The extent to which architectural preliminary projects, also known as preliminary projects, can be protected in terms of intellectual property law may raise various question marks, especially in terms of determining the nature of the work. In this information note, the elements according to which the legal nature of architectural preliminary projects will be determined in terms of the Law on Intellectual and Artistic Works No. 5846 ("FSEK" or "Law") will be discussed.

The protection afforded to architectural avant projects, also known as preliminary projects, under intellectual property law may raise certain legal considerations, particularly concerning whether such designs meet the criteria to be considered a protected work. This information note therefore addresses the legal status of architectural avant projects, under Law No. 5846 on Intellectual and Artistic Works and examines the relevant criteria for determining whether they fall within the scope of protection afforded under the said Law.

1. Architectural Preliminary Projects Within the Scope of FSEK

A preliminary project is a proposal project that enables the general outlines and architectural concept of a building to be revealed at the idea stage and constitutes the first stage of the architectural project process. It provides a preliminary framework for the project by revealing the size, layout and general appearance of the building through plans, sections and views.

In determining whether preliminary projects qualify as works in terms of intellectual property law, the provision regarding the definition of work in the Law on Intellectual Property Law is taken into account first. Pursuant to Article 1/B of the FSEK, a work is defined as any intellectual and artistic product that bears the characteristics of its owner and falls under any of the types of works listed in the Law. Therefore, in order for a work to be protected as a work within the scope of FSEK, it is not enough for it to be a specific project, but it must also have the characteristics of the author. Among the intellectual and artistic works listed in the Law are architectural works and all kinds of technical and scientific plans, projects, sketches, architectural and urbanism designs and projects. In this context, preliminary projects can be considered as works within the scope of FSEK, provided that they have the characteristics of the author.

It is possible to characterize architectural preliminary projects that bear the characteristics of the author in two different ways, depending on whether they have aesthetic qualities or not. Preliminary projects that do not have aesthetic qualities are considered as works of science and literature within the scope of Article 2 of the aforementioned Law; Preliminary projects with aesthetic qualities can be considered as works of fine art in accordance with Article 4 of the same Law.

2. The Element of Bearing the Characteristics of the Author

Although the conditions under which the condition of carrying the characteristics of the author will be fulfilled are not clearly stated in the Law, in doctrine and practice, particularity is accepted as the reflection of the scientific, literary, literary, artistic and personal characteristics of the author on the work and the original quality that distinguishes the work from others¹.

It can be difficult to determine the presence of the element of particularity, especially in terms of architectural projects that do not have aesthetic qualities. When the high judicial decisions are examined, it is seen that the element of originality in architectural projects is evaluated on the basis of whether the same project can be put forward by another person under the same conditions. Putting forward different and original projects for the same area will show that the creative thinking of the architect is reflected in the work and that the protection of the work may come to the fore. In this context, what is sought is not that the project has superior or extraordinary qualities, but that it is the product of a certain amount of original and creative intellectual activity. It is not mandatory for originality to be present in the entire work, but it may be sufficient to appear in a certain part of it².

In this context, it is possible to say that the feature sought in determining the quality of the work in terms of architectural preliminary projects requires a lower level of originality compared to some other intellectual and artistic works. The fact that the project reflects the personal and creative preferences of the owner to a certain extent and that it is not necessarily created in the same way by another architect under the same conditions is often considered sufficient for the existence of the element of particularity.

3. Determination of the Element of Particularity

In practice, the evaluation of whether an architectural project has the characteristics of the author is carried out by expert experts as it requires special and technical knowledge.

In the expert examinations, it is seen that not only the general appearance of the project, but also the various technical and design elements that make up the project are compared. In this context, factors such as building boundaries, design of floor plans, locations and sizes of spaces, axle spacing, drawing technique and pencil thicknesses, project axis and measurement techniques, furnishing styles, window sizes and total area of the building can be taken into account³. In addition, features such as the size of the shelter, engine room, prayer room and dwellings in the building, the number of dwellings and their settlements can also be evaluated.

Therefore, it is not only possible to conclude that the assessment of particularity is not made abstractly over the whole project; It is understood that the technical, architectural and design features of the project were examined as a whole.

4. Protection of Preliminary Projects Accepted as Works within the Scope of FSEK

Architectural preliminary projects, which are determined to have the characteristics of the owner, provide both moral and financial rights to the owner of the work within the scope of the Law, as they will have the quality of a work within the scope of FSEK. The moral rights of the author consist of the right to determine whether the work will be presented to the public and the way it will be published, the right to request that the name of the author be mentioned in the work, and the right to prohibit changes in the work. In addition, the owner of the work has exclusive rights to process, reproduce, disseminate, represent and transmit the work to the public by means of means of sign, sound or image transmission within the scope of the financial rights he has on the work.

In the event of an infringement on the financial and moral rights of the author, various legal claims can be asserted within the scope of FSEK. It is possible for the owner of the work to file a lawsuit for the prohibition of infringement in order to prevent a possible infringement within the scope of Article 69 of the Law, or it is also possible to file a lawsuit for refusal of infringement in order to eliminate the infringement and eliminate the consequences of the violation in accordance with Article 66. In addition to these, compensation claims of the author whose financial and moral rights are damaged may also come to the fore. Within the scope of Article 70 of the FSEK, the owner of the work can claim compensation for the moral damage suffered in case of infringement of moral rights, and compensation for the material damage suffered in case of infringement of financial rights and the profit obtained. However, it is possible for the owner of the work to claim moral damages in case of infringement of financial rights.

Conclusion:

5. It is possible for architectural preliminary projects to be accepted as works within the scope of FSEK, provided that they have the characteristics of the author. Depending on the aesthetic nature of the project, it may be classified as a work of science and literature or a work of fine art.
6. In determining the element of particularity, the originality and creativity of the project is taken as a basis, and a high level of creativity is not sought in terms of architectural projects, and it may be considered sufficient to reflect the personal and creative preferences of the owner of the project. Determining whether there is a specialty or not usually requires a technical expert examination.
7. Architectural preliminary projects bearing the characteristics of the owner are protected as works within the scope of FSEK and provide financial and moral rights to the owner of the work. In case of unauthorized use, reproduction, modification of the project and violation of other intellectual rights, the owner of the work will be able to claim the prohibition and refusal of the infringement and material and moral compensation.

Footnotes

1 Bakırköy 2. Civil Court of Intellectual and Industrial Rights, 2021/462 E., 2021/241 K., 8.12.2021 T.

2 Supreme Court of Appeals HGK., 2022/624 E., 2023/849 K., 20.9.2023 T.

3 Court of Cassation 11th Civil Chamber, 2020/5691 E., 2021/6489 K., 23.11.2021 T.