*Partner at FBK & Partners, Attorney at Law at Istanbul Bar Association
* PhD Candidate at Istanbul University
The term of “originality”, as a requirement for the existence of a work all around the globe, constitutes the very core of the term of copyright and so of the intellectual property law. That’s to say, it is agreed in the domestic laws of many states and in the relevant international agreements that to name something as a “work” for the purpose of copyright, it should meet the criterion of “originality” alongside with other criteria sought in the relevant laws and agreements. Keeping in mind that the criterion of “originality” is a common condition under many domestic laws and under almost all relevant international agreements, the definition and interpretation of the term gains tremendous importance. Yet, up to the moment, there has not been established a precise definition and interpretation for this term in any state law. Instead, the term has been attempted to be explained in ambiguous words which are far away from setting a standard. As a result, the notion of “originality” is still a hot topic the borderlines of which are still attempted to be drawn. In this article, being aware of the impossibility of describing and construing the notion in an absolute manner, the effort will be put in so as to figure out what was/were taken into consideration by the Turkish Court of Cassation when it comes to construing the concept. After the evaluations of the judgments, all the knowns in the notion shall be listed as below:
- The term is not a stable term. Instead, it is a flexible term. That’s why, it shall be described pursuant to the case at hand.
- The factual assessments for the term will be held by experts. The legal assessment should be held by courts. Courts should perform their duty according to the flexible nature of the term. For the purpose of such legal assessment, the “exclusive method” mentioned above seems as a convenient method for the interpretation of the term.
- Originality is only available for the expressed ideas. The mere ideas do not have originality.
- Although similarity between works may have some effect on their originality, that is not a decisive factor in terms of a similarity between their originality. Originality of works should be analyzed separately than their scripts, expressions.
- Aesthetics and originality are two different concepts. Originality does not necessarily entail a work to be aesthetic or unique.
- Anyone claiming that a work lacks originality bears the burden of the proof.
- For a work to be accepted as original, it has to bear a certain amount of creativity. It should not be usual.
- While deciding upon originality, the point of view of a regular listener/addressee should also be taken into consideration.