The central concept of the Intellectual and Artistic Works Law is the work. The work constitutes the source of the economic and moral rights arising from the work. According to Article 1/B of the Intellectual and Artistic Works Law, a work is any kind of intellectual and artistic product that belongs to one of the science-literature, music, fine arts and cinema works that bears the characteristic of its owner. In addition, according to Article 6 of the Intellectual and Artistic Works Law, adaptations and compilations that bear the characteristic of the adapter or compiler and do not harm the rights of the independent work owner are also considered as works.
There are three basic conditions for an intellectual product to be accepted as a work. These are;
· Formal Condition
· Subjective Condition
· Objective Condition
1. Formal Condition
The work groups listed in the Intellectual and Artistic Works Law are determined according to the principle of limited number. Therefore, an intellectual product that does not belong to one of the work groups specified in the law is not protected within the scope of the law.
2. Subjective Condition
According to Article 1/B of the Intellectual and Artistic Works Law, a work must bear the characteristic of its owner. The characteristic condition ensures that every intellectual product is protected within the scope of the law and that the works can be distinguished from other intellectual products. The characteristic is determined by expert witnesses in each concrete case. The expert witness will determine how the same type of works are created, whether the owner’s characteristic is reflected in the work, and if so, what it is clearly reflected in.
The criteria of the characteristic concept have not been clearly put forward. This concept is usually explained with words such as feature or originality. According to some decisions of the Supreme Court, in order for a work to be considered as a work, it is necessary and sufficient to determine that it was created by the work owner, that it is not a copy taken from other sources, and that it is a product of mental effort. In summary, we can talk about three major periods in determining the characteristic concept:
· The existence of a free shaping area for the creator of the intellectual product
· The existence of a feature above the general in the Intellectual Product
· The existence of a feature above the appropriate in the Intellectual Product
3. Objective Condition
For an intellectual product to be considered as a work, it must be objectively perceptible. In other words, the intellectual product must be directly or indirectly perceptible. It is not necessary to materialize on any object for the objective condition to be realized. That is, a speech made verbally or a spontaneous music can be protected by copyright. In addition, a work does not have to be completed in order to be protected by copyright under the objective condition; for example, a draft work can also be considered as a work.
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