Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24563/94

by Oguz ARAL, Galip TEKiN and inci ARAL

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 June 1994 by

Oguz ARAL, Galip TEKiN and inci ARAL against Turkey and registered on

7 July 1994 under file No. 24563/94 ;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, born in 1936, 1951 and 1947, are Turkish citizens

and resident in istanbul. They are represented before the Commission

by Mrs Semray Doganay, a lawyer practising in istanbul.

The facts of the present case, as submitted by the applicants,

may be summarised as follows.

The first and second applicants, Oguz Aral and Galip Tekin, are

cartoonists and the third applicant, inci Aral, is the editor of a

magazine, "Digil".

The applicant, Oguz Aral, had designed some cartoon characters.

These cartoons had been published especially in two magazines, "Girgir"

and "Firt".

In 1975 a company, ilbas A.S. (ileri Basin Ve Yayin Endüstrisi

Anonim Sirketi), bought the two magazines, "Girgir" and "Firt", which

featured those characters.

On 6 November 1989 ilbas A.S. sold the two magazines to an

entrepreneur, H.E.A. Thereafter, the applicants, along with other

cartoonists, were dismissed.

They then continued to draw the same characters for the magazine

"Digil".

On 1 November 1989 H.E.A. sued the applicants in the istanbul

Civil Court of General Jurisdiction. He requested that the applicants

be stopped from infringing his copyright. He maintained that the

applicants had been using, for the "Digil" magazine, the materials,

including the prints of the cartoons, that belonged to the archives of

his two magazines ("Girgir" and "Firt"). He maintained that he was the

owner of the cartoon characters, in accordance with Article 8 para. 2

of the Law on Intellectual Property Rights (Fikir ve Sanat Eserleri

Kanunu), as the applicants had created them during their contract with

ilbas A.S. of which he was the successor.

The applicants argued before the court that they were the owners

of the characters in accordance with Article 8 para. 1 of the Law on

Intellectual Property Rights which provides that the creator of an

artistic work is the owner.

On 2 April 1992 the istanbul Civil Court of General Jurisdiction

decided that all the financial rights over the artistic materials which

had been produced by the applicants during their contract with ilbas

A.S., either published in the two magazines, "Girgir" and "Firt", or

unpublished but held in the archives of the two magazines, belonged to

H.E.A. According to the court, these materials could not be published

without the latter's permission. The court added that the characters

created by the applicants could be used by them in other magazines or

newspapers but with other subjects and stories. In particular, the

court relied on the Law on Intellectual Property Rights and on the

applicants' contract with ilbas A.S.

On 9 June 1992 the applicants lodged an appeal with the Court of

Cassation against the judgment delivered by the istanbul Civil Court

of General Jurisdiction. They alleged that they were the owners of the

disputed artistic materials and that the istanbul Civil Court of

General Jurisdiction had misinterpreted the domestic law.

On 14 October 1993 the Court of Cassation dismissed the appeal.

It agreed with the istanbul Civil Court of General Jurisdiction as

regards its reasoning and assessment of the evidence.

The applicants applied again to the Court of Cassation for its

decision to be rectified.

On 8 March 1994 the Court of Cassation dismissed the applicants'

request for rectification.

COMPLAINTS

1. The applicants complain under Article 6 of the Convention that

they did not have a fair trial as the istanbul Civil Court of General

Jurisdiction decided that all the financial rights over the disputed

artistic materials belonged to H.E.A.

2. The applicants further complain that the length of the civil

proceedings between 1989 and 1994 exceeded the reasonable time

requirement under Article 6 of the Convention.

3. The applicants also complain that the result of their trial

constituted a violation of their right to freedom of thought and

freedom of expression. They invoke Article 9 of the Convention.

4. They also complain of a violation of Article 1 of Protocol No. 1

to the Convention in that all the financial rights over the disputed

artistic materials were given to H.E.A. by the domestic courts.

THE LAW

1. The applicants complain under Article 6 (Art. 6) of the

Convention that they did not have a fair trial as the Istanbul Civil

Court of General Jurisdiction decided that all the financial rights

over the disputed artistic materials belong to H.E.A.

The Commission recalls that under Article 19 (Art. 19) of the

Convention its sole task is to ensure observance of the engagements

undertaken by the High Contracting Parties in the Convention. It is not

competent to examine applications concerning errors of law or fact

allegedly committed by the competent national authorities, which are

competent, in the first place, to interpret and apply domestic law (No.

25062/94, Dec. 18.10.95, D.R. 83, p. 77).

In this case, the Commission notes that the applicants'

complaints concern the national courts' evaluation of the facts and the

evidence and their interpretation of the domestic law. The istanbul

Civil Court of General Jurisdiction held under domestic law and the

contract between the first and second applicants and ilbas A.S. that

the financial rights over the artistic materials published between 1975

and 6 November 1989 belonged to H.E.A. The court also held that the

first and second applicants could continue to draw the same characters

for other magazines or newspapers but with different subjects and

stories. The Commission finds no evidence or basis on which to conclude

that the istanbul Civil Court of General Jurisdiction, in establishing

the facts or interpreting the domestic law, acted in an arbitrary or

unreasonable manner. Therefore, there is no appearance of a violation

of the applicants' rights under Article 6 para. 1 (Art. 6-1) of the

Convention by the national courts.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicants further complain that the length of the civil

proceedings between 1989 and 1994 exceeded the reasonable time

requirement under Article 6 (Art. 6) of the Convention.

The Commission notes that the period to be taken into

consideration began on 1 November 1989 when the entrepreneur, H.E.A.,

sued the applicants and ended on 8 March 1994 when the Court of

Cassation dismissed the applicants' request for rectification of its

decision. It therefore lasted approximately four years and four months.

The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and having regard to the criteria laid down

in the established case-law, in particular the complexity of the case

and the conduct of the applicant and of the relevant authorities (Eur.

Court HR, Yagci and Sargin v. Turkey judgment of 8 June 1995, Series A

No. 319, p. 20, para. 59). Furthermore, the Convention organs also

consider it appropriate to make an overall assessment of the length

of proceedings in some cases (see e.g. Eur. Court HR, Cifola v. Italy

judgment of 27 February 1992, Series A no. 231, p. 9, para. 14).

The Commission notes that, in the present case, the applicants'

case was dealt with by two levels of jurisdiction in four years and

four months. Moreover, the applicants have not shown any substantial

periods of inactivity attributable to the judicial authorities. The

Commission therefore considers that the total period at issue does not

appear unreasonably long.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicants also complain that the result of their trial

constituted a violation of their right to freedom of thought and

freedom of expression. They invoke Article 9 (Art. 9) of the

Convention.

The Commission recalls that Article 9 (Art. 9) of the Convention

primarily protects the sphere of personal and religious beliefs (No.

14331-14332/88, Dec. 8.9.89, D.R. 62, p. 309). In the present case, the

Commission finds no indication of interference with the applicants'

specific rights under Article 9 (Art. 9) of the Convention.

The Commission considers that the applicants' above complaint

rather falls to be considered under Article 10 (Art. 10) of the

Convention, which guarantees the right to freedom of expression, also

invoked by the applicants.

The Commission notes that this complaint concerns a dispute

between the applicants and a third person with regard to commercial

rights over some artistic materials which were designed by the first

and second applicants in a given period. The court expressly noted that

the applicants are not prohibited from continuing to design and publish

other artistic materials. Even assuming that there has been an

interference with their right to freedom of expression and thought to

the extent that they were prevented from using the materials which had

been created during the period of their contract with ilbas A.S., the

Commission considers that the interference at issue could reasonably

be considered necessary in a democratic society for the protection of

the rights of others, in particular one of the parties to a contract,

within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4. The applicants finally complain of a violation of Article 1 of

Protocol No. 1 (P1-1) to the Convention in that all the financial

rights over the artistic materials were given to H.E.A. by the domestic

courts.

The Commission recalls its case-law that intellectual property

is covered by Article 1 of Protocol No. 1 (P1-1) to the Convention

(see, for example, No. 21962/93, Dec. 11.1.94, D.R. 76, p. 157).

The Commission notes that the case concerns a commercial dispute

between private parties. The State's intervention in the case only

occurred through its courts. The Commission recalls that there is no

interference with the right to peaceful enjoyment of possessions when,

pursuant to the domestic law and a contract regulating the relationship

between the parties, a judge orders one party to that contract to

surrender a possession to another, unless it arbitrarily and unjustly

deprives that person of property in favour of another (see, mutatis

mutandis, No. 8588/79 & 8589/79, Dec. 12.10.82, D.R. 29, p. 69;

No. 10000/82, Dec. 4.7.83, D.R. 33, p. 247).

In the present case, the domestic courts interpreted the domestic

law in the light of the contract between the applicants and H.E.A. They

decided that the owner of the artistic materials, in particular, the

pictures, cartoons, films etc., which were published or which were

unpublished but held in the archives of the magazines "Girgir" and

"Firt", was H.E.A. Furthermore, the courts decided that the applicants

could continue to draw the same characters which they had drawn and

published in the two magazines during the period of their contract, but

in association with other subjects and stories, in other magazines or

newspapers.

The Commission therefore finds no element in the case which would

allow it to conclude that the courts acted in an arbitrary or

unreasonable manner. Accordingly, there is no shortcoming attributable

to the State in this respect either.

It follows that this part of the application must again be

rejected as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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ARAL, TEKIN AND ARAL v. TURKEY

ARAL, TEKIN AND ARAL v. TURKEY

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