Owner’s Right to Make Changes in Architectural Works

02.08.2022

1.INTRODUCTION

Architectural structures are a phenomenon produced in response to the social, cultural and economic needs of societies, appearing in various forms for centuries, varying in function and being one of the essential elements of human life. When we think of architectural structures and the rights and powers that arise through these structures, the first thing that comes to mind is the owners of these structures. In other words, both the widespread opinion in the society and the general legal regulations are that the owners hold all the rights and powers over the buildings.

However, the field of intellectual property law grants certain rights and powers to creators of artistic and intellectual works, which can impose limitations on these conventional rules. Those who design, create, and produce architectural structures can also have rights and powers over these structures. This limitation placed on the rights and powers of owners necessitates the balancing of interests between individuals who hold rights stemming from intellectual property law and owners concerning architectural structures. This issue stands as one of the most debated topics within intellectual property law. In this article, we will attempt to discuss the scope and limits of alterations in architectural works within this conflict, which has numerous dimensions.

2.WORK CONCEPT

Architectural products must possess the quality of a work in order to benefit from the intellectual protection envisaged in Law No. 5846 on Intellectual and Artistic Works (“FSEK”). For an intellectual product to qualify as a work, it must exhibit the individuality of its creator, fall within one of the categories of works listed in the FSEK, and be capable of being shaped or perceived.

According to the FSEK, a work must exhibit the individuality of its creator. Acknowledging that the fundamental concept in the FSEK is the work, it is essential to recognize that the essence of a work is individuality. Essentially, the individuality requirement ensures the protection of an intellectual product within the scope of the FSEK and distinguishes works from other intellectual products. In doctrinal discussions, there are different views on the criteria for determining individuality. We concur with the view that a three-stage test should be applied to determine individuality. During this test, the existence of the creator’s freedom of form, whether the work is a product of the creator’s independent intellectual activity, and the distinction of the work from routine or ordinary practices should be examined.

Another objective element required for an intellectual product to be classified as a work is that it is envisaged in the FSEK. The FSEK specifies that, for an intellectual product to be considered a work, it must belong to one of the four groups of works mentioned: scientific and literary works, musical works, fine arts works, and cinematographic works. Another objective condition is that the intellectual effort in question has taken shape and become perceptible.

3.ARCHITECTURAL PROJECTS

The preparation of architectural projects constitutes one of the most significant activities within the architectural profession. Preparatory projects, preliminary projects, final projects, implementation, and detailed projects prepared by architects before the construction of a structure are defined as “architectural projects” within the scope of the FSEK. Architectural projects are expressly categorized as “scientific and literary works” in the FSEK. Consequently, the rights of the author in architectural projects are limited to the project itself. The author cannot claim any rights under the FSEK regarding the architectural structure that emerges from the implementation (construction) of the project. In addition to this, for an architectural project to be eligible for protection under the IAAW, it must possess a certain level of individuality. We believe that architectural projects related to structures that can be drawn by anyone and are commonly seen in multiple places should not benefit from intellectual protection.

4.ARCHITECTURAL WORKS

Architectural works are protected as one of the fine arts works in the FSEK. In architectural works, it’s not the project, sketch, or plan but the structure itself that is protected. Therefore, it is necessary to distinguish architectural works by their designs and plans. Functional buildings like schools, hospitals, and public buildings, as well as non-functional structures like monuments, can be protected as architectural works.

In architectural works, in addition to individuality, aesthetic value is also required. Aesthetic (bedii) refers to something that is unique, subtle, beautiful, exquisite, complying with standards of beauty, pleasing to the eye and heart, and admired. However, when discussing a fine artwork, it is not necessary for everyone to find that work beautiful or subtle. Because of their functional nature, architectural works should not be evaluated with rigid criteria for individuality and aesthetic value. In this context, an architectural structure that provides room for the author’s creativity shows some degree of originality, meets aesthetic demands alongside functional features, and represents a relatively new and partial work can also be protected as a fine artwork.

The material used in creating a fine artwork and the intended purpose of the work does not matter in determining its status. In architectural works, individuality should stem directly from the shaping of the structure itself, not from a set of art products used within or on the structure. Architectural works should not be confused with historical works. Even structures without any historical or cultural significance can be protected as architectural works. For example, architectural works like the Narlıyan Apartment, Valpreda Apartment, Surp Agop Row Houses, Pera Palace, Egypt Apartment, Lawyers’ Complex, Former Akbank Headquarters Building, and Perpa Business Center would not surprise anyone if classified as “architectural works.” However, everyday buildings, houses, bridges, fountains, business centers, mosques, churches, and well-known and commonly used architectural forms found everywhere in daily life should not be included in the scope of intellectual protection.

5.AUTHORITY TO MAKE CHANGES IN ARCHITECTURAL WORKS

According to Article 683/1 of the Turkish Civil Code (“TMK”), the owner of the property has the right to use, benefit from, and dispose of that property as they wish within the boundaries of the legal order. Therefore, as a rule, the owner can sell, lease, or exercise other rights arising from property law over the architectural work they own. However, the authority to make changes to an architectural work differs from other rights and authorities. Over time, except for purely aesthetic architectural works like monuments and landmarks, there may arise a need to make changes to buildings. Architectural works encompass the individuality or characteristics of their creators. Therefore, making changes to a work of art can imply the loss of the work’s individuality for the author. Consequently, when it comes to changes in architectural works, it is necessary to balance the interests of both the owner and the author to ensure a harmonious resolution.

a.Changes in Architectural Structures

If the architectural projects result in the construction of buildings that lack aesthetic value, the author of the work does not have any rights derived from the FSEK over the said building. Therefore, the author of an architectural project with the characteristics of a work of art cannot object to the alteration, destruction, or demolition of a structure that does not qualify as an architectural work, as a result of the project.

b.The Right to Prevent Modifications by the Author and Justified Reasons

Modification Authority

According to Article 16/1 of the FSEK, it is not possible to make alterations, abbreviations, additions, or other modifications to the work or in the name of the work’s author without the permission of the author. Even the owner of the work is generally obligated to obtain the author’s permission before making any changes to the work. In other words, the owner of a structure classified as an architectural work, as a rule, does not have the right to make changes to this work in any way they want. According to Article 16/3 of the FSEK, the author can allow the owner, through an agreement, to make any changes to the work in advance. However, even if the author has delegated the authority to make changes to the work, they can prohibit any changes that damage their honor and reputation or alter the nature and characteristics of the work.

There is an exception to the modification authority in Article 16/2 of the FSEK. A person who uses the work with the authorization of the author can make modifications without obtaining separate permission from the author in necessary cases related to its use. For example, in cases where certain essential modifications to the architectural work are necessary to obtain a building permit, the owner or the person responsible for the construction does not need to obtain permission from the author. However, the owner’s justified reasons or needs related to the use of the work are not covered by this article.

Justified Reasons

The provisions of the FSEK regarding the author’s authority to prevent changes do not include an exception for the owner’s justified reasons. As a general rule, any kind of change to the work can only be made with the author’s permission. However, changing styles, emerging new needs, the deterioration of the structure over time, socio-economic changes affecting the environment and the city, and other factors may necessitate changes to an architectural work. These changes, for the reasons mentioned above, are primarily related to changes in the intended use or the dimensions of the structure.

According to one view, in the presence of various justified reasons that emerge over time due to changing usage needs, the owner has the right to make changes to an architectural work without the author’s permission. For example, changes such as adding a heating system to an architectural work, replacing an old elevator system, or adding solar collectors for harnessing solar energy can be considered justified reasons. Another view suggests that the author (architect) when creating the work, takes into account the purpose of the structure, its surroundings, the natural conditions of the area where it is built, social conditions, and urban planning, and is aware that these factors can change over time due to the ordinary course of life and professional experience. According to this view, the author who can foresee changes to the architectural work should be deemed to have granted permission to the owner to make changes. The limits of this permission should be determined by changes that do not undermine the author’s honor and dignity.

In our opinion, assuming that the author granted permission for changes to the architectural work during the project stage and consequently determining the limits of the permission solely based on actions that would undermine honor and dignity are not in line with the FSEK systematics. According to Article 16/1 of the FSEK, the permission for changes must be explicitly given by the author. According to Article 57 of the FSEK, the transfer of ownership rights over the original or reproduced copies does not include the transfer of intellectual property rights unless otherwise agreed. Therefore, unless the author explicitly grants permission, the limits of the owner’s right to make changes should be based solely on justified reasons related to the right of use. The determination of justified reasons should depend on the specific circumstances of the case and should involve balancing the interests of the owner and the author.

c.Destruction and Demolition of Architectural Works

Architectural works hold great significance for their authors, and these works are how these individuals are recognized and known. The demolition or destruction of such works poses a risk not only to the authors’ moral rights but also to their economic future. According to Article 17/2 of the FSEK (Copyright and Related Rights Law), it is prohibited for the owner to destroy or demolish an architectural work. The exceptions to this prohibition are determined by the contractual conditions between the parties. In legal doctrine, it is generally accepted that the destruction or demolition of an architectural work is possible in the presence of justified reasons. For example, the demolition of a building whose useful life and economic value have come to an end can be considered a justified reason for the owner. According to one view, buildings that have become part of the collective memory of society or are protected under old heritage laws should never be demolished or destroyed.

d.Balancing the Interests of the Owner and the Author

Mimari eser üzerinde, eser sahibi, FSEK’ten kaynaklanan münhasır hak ve yetkilere, malik ise mülkiyet hakkından doğan sınırsız yetkilere sahiptir. Mimari eserlerde, maliğin, eser sahibinin FSEK md. 16/1’de öngörülen izni olmadan yapabileceği veya yapamayacağı değişikliklerin tespitinde, eserin kullanım şekli ve amacı, taraflar arasındaki sözleşme ilişkisi ve genel olarak menfaat dengesi dikkate alınmalıdır.

In architectural works, the author holds exclusive rights and powers derived from the FSEK, while the owner possesses unlimited powers stemming from property rights. When determining the changes that the owner can or cannot make without the author’s permission, factors such as the usage and purpose of the work, the contractual relationship between the parties, and the overall balance of interests should be taken into account.

The owner cannot make arbitrary changes, changes that completely eliminate the work’s uniqueness, changes without a justifiable reason, or changes solely of an aesthetic nature without the author’s permission. Changes driven by operational needs, such as repairs and painting in a hotel or changes necessary due to aging and mandatory renewal of fixed and movable decorations, can be considered justified reasons. Changes arising from economic needs related to increasing production or service demands in factories or public service buildings, or changes due to shifts in city zoning plans or population growth, can also serve as justifications for alterations. For example, architectural works in a region that transitions from residential to a central business hub due to urban development plans should be allowed to convert from residential to commercial use.

Mandatory changes arising from building regulations or structural safety reasons within urban planning can also be applied to architectural works without disregarding the author’s interests entirely. In such cases, public order and public interest take precedence over the owner’s property rights. Routine maintenance and repairs that do not result in any changes to the work do not require the author’s permission.

In conclusion, the owner of an architectural work may proceed with alterations or demolition without obtaining the permission mentioned in Article 16/2 of the FSEK by asserting that the benefits they gain from these actions outweigh the author’s moral rights.

6.LEGAL CASES

It is also crucial to determine what legal actions the author of architectural works can take if the architectural works are altered in violation of the principles of good faith and the provisions of the FSEK without any justifiable reason.

a.Lawsuits of Prohibition and Restoration to the Original State

If there is a threat of unlawful alteration to the architectural work, the author can request the prohibition of such alteration from the court. The author whose economic and moral rights have been violated can also file a lawsuit to restore the situation to how it was before the violation. The purpose of this lawsuit is to eliminate all the unlawful consequences brought about by the violation. In this context, in architectural works, the author, in accordance with FSEK Article 67/4, can request that changes to the original structure that were not made by them or the removal or alteration of their name in the work.

In architectural works, if it is possible to restore the original state and the removal of the alteration does not significantly violate the interests of the public or the owner, the author can also request the restoration of the original state. In the Sun Plaza and Haliç Congress Center decisions, the Court of Cassation ruled that the court should thoroughly evaluate the restoration to the original state request in terms of the interests of the public or the owner. In our opinion, it should also be examined whether the author has any interest in the restoration of the work to its original state along with the interests of the public or the owner. If the author cannot achieve the restoration to the original state, they may request that it be formally declared in accordance with the proper procedures that the alteration was not made by them or that their name be removed from the work in any manner.

b.Compensation Lawsuits

Since the right to prevent alterations to architectural works is a moral right, the author does not have the right to claim compensation in the amount of three times the copyright fee. However, the author can still assert a claim for moral damages in accordance with FSEK Article 70/1.

7.CONCLUSION

Not all architectural structures benefit from intellectual protection. For intellectual protection, an architectural structure must have the characteristics of an architectural work. In FSEK, architectural works are classified under the category of fine arts. In doctrine and practice, it is generally accepted that the author’s right to make changes under the FSEK should not be interpreted strictly, and it is acknowledged that the owner may make changes to the architectural work in the presence of valid reasons.
In determining the valid reasons of the owner, a balance between the owner’s property rights and the author’s rights arising from the work must be maintained. The author has the right to initiate legal proceedings against arbitrary or substantial changes made without valid reasons. In addition to compensation rights, the author can also request the restoration of the work to its previous state or request that it be indicated that the changes were not made by the author, or request the removal of the author’s name on the work if the conditions are met. The author’s rights regarding compensation claims are also reserved.

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