Petitions Written By A Lawyer Do Not Constitute A Work
11th Civil Chamber of the Court of Cassation
Principal Number: 2015/12923
Decision Number: 2017/2724
“Case Law Text”
COURT : … … … 1. INTELLECTUAL AND INDUSTRIAL RIGHTS
In the case between the parties … … The Supreme Court review of the decision dated 07/07/2015 and numbered 2010/170-2015/143 given by the 1st Intellectual and Industrial Rights Civil Court was requested by the plaintiff’s attorney and it was understood that the petition of appeal was submitted within the time limit, since the amount subject to the lawsuit is less than 21.242 TL, it was decided to reject the request for a hearing in accordance with Article 438 as amended by Law No. 3156 of the Code of Civil Procedure, which should be applied by virtue of the provisional Article 3/2 of the Law No. 6100, and to conduct the examination on the file. After it was decided to reject the request for a hearing pursuant to Article 438 of the Code of Civil Procedure amended by the Law No. 3156, which should be applied by virtue of Article 3/2 of the Law No. 6100, and after the report prepared by the Examining Judge … for the case file was listened to and again after the petitions, pleadings, hearing minutes and all documents in the file were read and examined, the matter was discussed and considered:
The plaintiff’s attorney stated that his client acted as an attorney in the lawsuits against … Holdings such as …, …, and …, and that while conducting these lawsuits for more than 5 years, he obtained a lot of information about more than 50 companies by requesting information and documents from official institutions, following criminal cases, examining criminal case files in foreign countries, and … ‘s master’s degree in international corporate law, and that his client, who holds a doctorate in the same field, has classified and summarized hundreds of folders of this information, and has prepared petitions of scientific value for each company operating in this way, including footnotes, that he updated the pleadings with all the information he obtained in this way, thus resulting in pleadings exceeding 30 pages, which were the result of detailed work in the field of both corporate law and Capital Markets Law, and that the defendant copied his client’s pleadings almost verbatim and used them in his own lawsuits, The references, quotations, even the parts indicated in bold are the same, the petitions are in the nature of works, the use of the petitions without the permission and knowledge of his client is a violation of his rights arising from the FSEK, the plagiarism made by the defendant is not partial but a complete plagiarism, claiming that the defendant has gained unfair advantage by using his client’s work, preventing new infringements by taking an interlocutory injunction, then stopping the existing infringements and eliminating them with all their consequences, without prejudice to his rights regarding the surplus, in accordance with Article 68/1 of the FSEK, 5.190,00 TL, which is 3 times the amount of 1.730,00 TL, for each lawsuit and answer, for the unauthorized use of the petition. Pursuant to Art. 68/1 of the Code of Civil Procedure, he requested and sued for 5.190,00 TL, which is 3 times of 1.730,00 TL in accordance with the … Bar Association Fee Tariff due to the unauthorized use of the petition, 3.000,00 TL non-pecuniary damages per client in accordance with Art. 70/2 of the Code of Civil Procedure, payment of all profits and attorney’s fees of the defendant to his client in accordance with Art. 70/3, and the announcement of the judgment.
The defendant’s attorney stated that the petition would not be considered as a work as the plaintiff claims, that even if it is considered as a work, the plaintiff is not the author, that the relevant cases are well-known cases, that the … Solidarity Association established in … and the law office headed by Av. … and the law office, which is headed by Av. …, are conducting these cases, that the plaintiff and his client have met with Av. … and that the plaintiff and his client have met with Av. … and they were offered to carry out these cases in Turkey, and upon dissatisfaction with the service provided by the plaintiff, the representation of the … association and its members was given to his client, the petitions and documents were supplied by the association, and that his client did not have any unfair or infringing action, and defended the dismissal of the lawsuit.
According to the claim, defense, the evidence collected, the expert report and the entire file scope, the court stated that the petitions may very exceptionally be in the nature of protected works in terms of the personal comments and researches of their owners, that the information used for this should be defended by the lawyer for the first time, should not enter the public domain, and should reveal an intellectual creativity, that inadequate information in low-level expression and scientific works in the category of scientific and literary works, which may include the petitions, will not contain a specialty, that the specialty requires creativity, provided that it is not ordinary and has a certain level, the petitions of the plaintiff were prepared in a certain order, systematically by referring to the relevant articles of law, judicial decisions, doctrine and frequently to the CMB report due to the importance of the subject matter, a certain fiction was created in the petitions, within the framework of this fiction, the victimization suffered by the client and the event leading to the conclusion of the claim were explained, the relevant petitions partially referred to the facts and the evidence to prove these facts, from this point of view, the obligation of concretization stipulated in the CCP was fulfilled, Although the CCP was not in force at the time the petitions were prepared, it is accepted that the burden of concretization must be fulfilled in the petitions in the application of the HUMK, and the legal reasons, which are among the elements that must be included in the petition, are included in the petition together with the burden of concretization, Although the plaintiff included the points that should be included in the petition as per the law, there were no elements that could be more prominent in terms of originality and reflecting the specificity of the owner, doctrinal references were used a few times in the petitions, and generally accepted views on substantive law were added to the petitions with short explanations by giving the articles of law, As it is frequently used in practice, case law texts are also included, in this respect, the petition does not meet the conditions required for the acceptance of the petition as a work, such as being defended for the first time, not entering the public sphere, revealing an intellectual creativity, and although the petition is not required to be original, it does not qualify as a work since it does not fulfill the condition of having a certain level of specificity, and in the evaluation made regarding unfair competition, the parts stated in the content of the petition and found to be identical are quoted from the CMB and articles of law, the information … Association’s pool, and that the said Association had notified that the defendant had been appointed as the attorney due to the plaintiff’s failure to take care of the members of the Association, and decided to dismiss the lawsuit.
The decision was appealed by the plaintiff’s attorney.
According to the information and documents in the case file, and the fact that there is nothing contrary to the procedure and the law in the discussion and evaluation of the evidence relied on in the reasoning of the court decision, all the appellate objections of the plaintiff’s attorney are not appropriate.
CONCLUSION: For the reasons explained above, it was unanimously decided on 09.05.2017 that all the appellate objections of the plaintiff’s attorney were rejected and the judgment, which was in accordance with the procedure and the law, was APPROVED, and that the following balance of 3,70 TL appeal writ fee should be collected from the appellant.
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