A Pragmatic Looking at Merger (joining) of Professional Associations
Intellectual property Rights, i.e. property rights acquired from the Work of Art, are the fundamental human rights which are adhered strictly to the Author and which are vested in human being by birth. Wit this qualification however naturally it took its place in the Universal Declaration of Human Rights.
Intellectual and Industrial Property Rights which have been taken under protection by the Law No. 5846 have been further invigorated and strengthened by amendments made under the Law No. 4110, and it is prescribed under the provisions of the Law that those who have taken over the power of utilization of financial rights from owner of the work of art or right holder, and those who reproduce and distribute dailies (non-periodicals) are allowed to set up several Professional Associations on the field of activities to be designated in strict compliance with the Regulations and Standard (type) Statuses issued by the Ministry of Culture and ratified by the Council of Ministers for the purpose of defending common interests of its members and ensuring the management and following up of rights vested with this law, collection of fees and distribution of such fees to the right holders.
This amendment made in the Law is rather significant in terms of much more effective protection of intellectual property rights, more effective presentation and marketing of the work of art by the author within the Industry of Culture.
The first Professional Society in Europe was established in 1850 in France. The need for organization had been resulted from a lawsuit of compensation filed by the composer Bourget against a café owner
Works of music, particularly small pieces were played at the café. Orchestra had also played Bourget’s work. Thereupon, the Society so established commenced to monitor transgressions against rights of owners of works of art and to initiate lawsuits against unfair and unjust benefits and utilizations.
The initial establishment of the Professional Associations in Turkey was accomplished in 1983 upon amendment by the Law No. 2936 on the Law No. 5846 respecting Intellectual and Works of Art.
Works of Art subjected to Intellectual Property Rights require a powerful and effective protection against unjust and unlawful usufruct and reproduction due to its universality and fast developments in technology. Today it is possible that song of a celebrity in Turkey or production of a famous film can reach every place in the World. Therefore, the way and means for protection of authors’ rights may only be possible that organizational structures formed in this direction should gain and acquire actual and legal effectiveness and activity. Organization of authors (owners of works of art) for solution of numerous problems such as all rights acquired on the field of intellectual property as it is usual at every aspects of the social life, ownership of right, copyrights, fight against pirate and so forth and consciousness and awareness of the public has become obligatory and compulsory in the contemporary world.
In our Country, as it is all over the World, however, the most significant fact that we have come across is the need for the functional unity and effective representation. It is obvious and self-evident that independent professional associations/organizations cannot be heard and taken serious efficiently and effectively both within our country and international arena in respect to protection of rights of authors.
In terms of rights acquired in the field of the Intellectual and Industrial Property Sounding of such problems as right holding, following of interests, etc. at a high and effective voice at regional and global platforms depends on the fact that professional associations should be formed and united as unions, umbrella organizations in the form of national and international federations and confederations. Pro rata to clearness and openness of missions and visions of these senior organizations, development of consciousness (awareness) of ownership at the member corporations and effective accession to the senior organization would be possible.
The statute on “Professional Information and Federation for Authors (Owners) of Intellectual and Industrial Works of Art Neighboring Right Holders” entered into force and effect by publication in the Official Gazette dated 10.03.1999 contains provisions related with incorporation, operation and winding (termination) up of Federations.
The Article with heading “Incorporation of Federations” in the Statute reads as following:
Article 49- Federations of professional associations may be incorporated by at least two professional associations conducting business activities on the same field in conformity with the standard (type) status prepared by the Ministry and ratified by the Council of Ministers.
Although the status states that Professional Associations may establish Federations and operation thereof has been mentioned therein, there has not made any reference for incorporation of confederation. In spite of the fact that there is not any provision in the Law in relation with incorporation of Confederation, there is not also any provisions in the Statute which may hinder incorporation of a Confederation.
At this point it would be beneficial that legal status and qualification of the professional associations should be evaluated. As it is described in detail in the book with heading “Intellectual Property” written by Tekinalp, based on the provision to which references are made it may be established and concluded that professional associations are societies and that they are much more close to societies in legal terms. However, inasmuch as the fact that societies on economic purpose (profit seeking) have not been recognized and acknowledged in our legal system, such kind of qualification has not been suitable and fit to the purposes intended due to its position in respect to the profit sharing.
The proper and optimum solution is to consider the said organizations as society and to apply provisions of ordinary (private) partnership onto them along with the provisions of society.
In Article 10 of the Regulations on Societies it has been ruled and prescribed that confederation can be established only by at least three federations whose incorporation purposes are same and shall posses the status of incorporation (legal entity) only after submittal of their declaration of incorporation and its annexes to the competent Office of the Local Executive. Likewise, in the Societies Law No. 5253 there are provisions related with federations and confederations regarded as their superior organizations.
By way of analogy it can be concluded that Federations of the Professional Associations established pursuant to the Statute on Owners of Intellectual and Works of Art (literary and artistic works) and Neighboring Right Holders Professional Associations and Federations may be join and work under the umbrella of Confederation.
In the World the best example for joining of professional associations under the umbrella of Confederation is CISAC, i.e. Confederation of International Societies of Authors and Composers. As of the month of January of the year 2004 CISAC has been representing 209 professional societies incorporated in order to protect intellectual property rights of such as authors, composers, lyricists, etc. Eventually CISAC, in a sense, has been representing approx. two million artists having artistic repertoires containing musical masterpieces, scientific and literary masterpieces, audio-visual or only visual works of art, graphical works of art.
Thanks to the developments experienced in Internet medium and in the field of technology CISAC has been twisted and got freed from its position just to be a professional association providing information to its members only on collective management and intellectual property rights, but has reached today to a service provider providing means and standards on creation of repertoires by confederation member professional associations. CISAC members have increased the amount of their income earned through collective management system up to 6 billion Euros by the year of 2000 all over the World.
In spite of the fact that it is an International Organization, as it is in the example of CISAC, joining of Professional Associations established for the like purpose and Federations to be incorporated under the same umbrella and structuring in the form of Confederation will ensure establishment of much more functional and much more effective relationships among all member organizations, senior (principle) organizations and international organizations. Pattern of such kind of structuring will not only provide prestige to the organizations among themselves and in their countries but also before international establishments.
When we have reevaluated the same issue in terms of that is specific to Turkey however it could be reached to a similar result. Numerous professional associations on different branches of arts have been established in Turkey and although some of them lost their functions in time, an increase has been observed in the number of professional associations. Terms and conditions on which branches and in which manner professional associations may be set up and conditions related with establishment of several professional associations in the same professional group at the same fields have been also stated in Article 42 of the Law No. 5842 and in the related Regulation, by which we have also encountered in the course of implementation.
Professional Associations which have been established at the same fields could not be united until now under the roof of a federation. Efforts in this matter have become unsatisfactory, but cooperation has been created on certain fields being limited by development of implementations regarding joint action by Professional Associations on issues determined among themselves.
We have not got the impression that these activities which remain limited with cooperation within certain fields have not been adequate and satisfactory on the part of the Professional Associations to achieve their objectives and prospects and which would not be satisfactory and enough also in future. Therefore, however, capabilities of the right holders have also remained limited to get involved and take part in the course of seeking remedies, creating public opinion, preparations of laws and regulations. Nevertheless, considering the fact that priority of the professional associations was to protect common interests and benefits jointly, they should join as soon as possible under the roof of federations.
At the next stage action should be exercised to ensure them to be join under the roof of at least one federation so as to augment effectiveness and power of Federations to be set up, and efforts in this issue must be commenced immediately.
At the result of such structuring it is a reality that more than one Confederation could also be established on different fields of activities. Our opinion is that such a condition could not lead any negativeness.
By the premises heretofore made, it would be needless to say on the necessity that merging under an umbrella for a powerful mission of representation to be effective on the decision making mechanisms. However, Organizations related with Intellectual Property Rights and the Professional Associations should initiate and improve different approaches onto the matter what kind of merging could be much more functional and effective, how and to what extent the restructuring in the form of federation and confederation could serve the purpose of incorporation of the umbrella establishments, and thus a new process of discussion should be commenced.
At this stage, to the extent that too many Professional Associations are joined under an Organization, consciousness and awareness on the field of intellectual property rights will increase, and absolute way for protection of the author’s masterpiece will be opened.
AUTHOR: Lawyer, Lütfiye AKGÜL – Lawyer, M. Kaan KOÇALİ FİYAB
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.