The legal right of share and prosecution is for the owner to benefit from the surplus value in sales figure of the work occurring between the late sales after first sale. It means, in case an article of virtue gains value after being sold by the work owner and reselling figure is much higher relatively to first sale figure, providing a share from the difference in figures to work owner or if he is deceased his inheritors.
Prosecution right is regulated in article 45 of Law on Intellectual and Artistic Work (“Law”), under the heading “Providing Share from Sale Value of Article of Virtue”. Accordingly, works to be claimed for share and prosecution rights are, apart from architectural works, originals of articles of virtue stipulated in the 4th article of Law and copies deemed as original since work owner has created limitedly or works created under the owner’s control and his approval and signed or marked in other ways by the owner and originals of the work written in handwriting of authors and composers stipulated in 2nd article para.1 and 3rd article.
In case there is an evident disproportion between the last and first sales figure of the said work, work owner or his inheritors may claim for 8%-%10 of the difference of two sale figures.
Although share and prosecution right was regulated in 1951 when Law became effective and took place in Turkish Law before many countries; this provision has not been implemented since the effective date until now. Because until 2006 there was not a Council Ministers’ Decision stating the proportion of share to exercise this right, work owners were not able to perform their rights. On the other hand, since most of the artists and their families were not aware of the decision after it was promulgated, there is no Supreme Court Jurisprudence.
In accordance with Law article 45/1, “Work owner, if he is deceased his inheritors till second degree relative (including this degree) and his wife, inexistence of these related profession association” are entitled for share and prosecution right.
It would be convenient for a legal action stipulated as sale in the said article to be interpreted as conveyancing between living persons in the means of essential principles of Intellectual and Artistic Work law. When interpreting in intellectual rights, one should bear in mind that first aim of Intellectual Property Rights Law is to protect the work owner.
In order to perform share and prosecution rights, period of limitation regarding the protection of work should not be lapsed. Period of limitations regarding the protection of the owner’s rights are regulated in article 26 of Law and article 27 which is amended by the law numbered 4110. Protection of the rights arising from ownership of the work is limited by certain periods, this situation is regulated as “Royalty rights entitled to the owner are limited with a period of time. Apart from the situations stated in article 46 and 47, after lapse of time everyone may benefit from the rights entitled to the owner.” According to the protection right regulated in the article 27, period of time is during the owner’s life time and 70 years following his death.
In accordance with article 45/III of Law, owner of the institution where the sale took place and seller are liable jointly for the claims arising from share and prosecution right. In the Council Ministers’ Decision article 3, by obligating the owner of the institution where the sale took place or seller to inform the work owner or, in case he is deceased, other title holders in 2 months from sale about the sale, the owner of the institution where the sale took place and seller are obliged to inform the right holder of share and prosecution right accordingly to article 45/III of Law. In case there is not an owner or other right holders, said people must inform the related profession association in 2 months.
Buyer of the work will never be held liable as well as his representative in sale; as a matter of fact, even if the seller does not discharge his debt, buyer and his representative cannot be held liable.
It is not in accordance with justice and equity senses that as well as the collectors, artist who is essential in entire art sector and whose work has gained value is unable to claim for an appropriate share from the extraordinary raise in value after it passes into other hands. Work owner must be provided an appropriate share from surplus value.
To develop the rising Turkish art, it would be appropriate to take abovementioned legal steps to provide pecuniary and moral satisfaction and equity to work owner by performing all the rights and authorities stipulated in law.
In conclusion; the environment in which the work owners and their inheritors may perform share and prosecution rights on the article of virtues particularly paintings and sculptures resold in higher figures is established as today. In the future days, we will encounter with many cases and legal results in this context.