ABSTRACT
“Book of Tricks/Kitab’ül Hiyel” by İhsan Oktay Anar, tells the story of three heroes who lived in the Ottoman period and devoted themselves to the science of tricks/ hiyel, is a fictional text. Beyond being a fictional text, it differs from the classical definition of fictional texts due to the historical and technical elements in the content of the book. Because of many elements in the text such as the images of inventions and detailed accounts of inventions, the text in question can be seen more than a fiction. In addition, the period in which the heroes of the text lived and the state of the Ottoman Empire in this period was also processed in a very detailed matter as a subtext. In the book, the story of three heroes who have become one with the products that we will express them as “patent” and “invention” in today’s legal language is told. How and in what ways the inventions were protected during the Ottoman period is not explained in detail due to the fact that it is a fictional text. Despite this, through these heroes, the efforts of the inventions to reach the sultan is described with admirable language. Since, during the Ottoman period, which the novel is about, there was no Patent Law, inventors could only protect themselves and their inventions through the sultan or senior managers. Within the scope of our study, this period of the Ottoman Empire and the process of legalization in the field of patent law will be examined.
Within the scope of our study, this period of the Ottoman Empire and the process of legalization in the field of patent law will be examined.
I. INTRODUCTION
Hiyel (tricks), which is the plural of the Arabic word hîle (skill, precaution, remedy, method), is generally used in the history of sciences in the sense of “machine knowledge” or “mechanical technology”1. “Kitab’ül Hiyel” which we can translate as “Book of Tricks” describes the inventions of the three heroes in the Ottoman period and the efforts they made to make their inventions noticed. Considering the period/date range of the text, it can be said that there was no law regulation on patent law in the Ottoman period, and it can be stated that inventors were encouraged by concession. However, we would like to express that the subtext of the aforementioned text examines issues like the master-apprentice relationship, the final collapse of the guild establishment in the Ottoman Empire, and the challenges faced by the inventors who developed industrial property products during the emergence and growth of the industry. The Ottoman patent law and the procedure for formalizing inventions will be explained in detail below. In addition, the difficulties experienced by the inventor heroes during the period of the novel will also be included. It can be said that the main reason for this is the lack of laws or the lack of regulations on implementation, despite the increasing need for intellectual property protection. In our study, the novel will be explained in terms of its general outlines, period and historical process. Subsequently, the developments and changes in the Ottoman patent law during this period will be covered.
II. THE PERIOD OF THE FICTION AND THE HEROES
Kitabül Hiyel tells the story of three different inventors living in Istanbul in the 19th century. However, the understanding of the period about inventions/ inventors or, more broadly, innovations is also presented to the reader as a subtext. The three inventors in the book are essentially not heroes with independent stories from each other. On the contrary,three different characters who have trained by each other in the master-apprentice relationship are described. Firstly, the introduction to the story is made with the character of Yâfes Celebi. Then, the reader witnesses the life of Kara Calûd, who was taken from the slave market but freed by Yâfes Celebi. Finally, it describes the life of Mr. Üzeyir, who was the under wing of Calûd, and the important events that took place in the Ottoman history. In the novel, which takes place in a date range starting with the 3rd Selim period and extending to the 2nd Constitutional Monarchy, information about the master apprentice relations of the tradesmen of this period and the hierarchies between these people are also conveyed. It is seen that the text includes a lot of technical and detailed calculations, and images of the inventions that all three heroes have imagined and invented. In this context, it is evident that we are confronted with a dense accumulation of information, both plot-wise and technically. Although these works included in the text are primitive devices, they appear as quite creative and different wheels, brands, weapons and levers for the period. In addition, it is also an important subtext that the novel takes set during a time when the Ottoman Empire gave importance and encouraged innovations, inventions, and inventors.
The appearance of the janissaries discussing the New Order/ Nizam-ı Cedid army in the location of Yâfes Çelebi, whose story was mentioned in the beginning of the novel, shows that the novel has begun during the 3rd Selim period. If his case is during the Hayriye period, his murder shows that the story of Yâfes Çelebi was completed in 18262. Regarding Calûd, it is understood that he lived in 1827 and its continuation from the chapters in which there are narratives about the difficulties of life during the period when wearing trousers began “With the decrees of His Nibs Sultan Mahmud”3. Finally, it is seen that Mr. Üzeyir went to the “Istanbul Industrial School” and that this period corresponds to the 18954. In this context, we would like to draw attention to the fact that the novel describes more than a century of history, but the law on inventions existed only recently within these dates. Although parts of the text, such as Yâfes Celebi’s application for the İhtira Berat, were included at the beginning, the İhtira Berat Law had not yet came into force at the time of the occurrence. However, at this point, it would be useful to say that the application of the letters patent (certificate of invention) was also available before the law. As it will be explained in detail in the following headings, the law on patents in the Ottoman period was enacted with the Law of Letters Patent in 1880. Prior to this law, inventors were encouraged by means of concession and letters patent granted to them.
Despite it not being at every stage of the novel, it is seen that special efforts were made from the heroes to get their inventions approved, especially in the parts where the story of Yâfes Celebi is told, and all three heroes tried to have their inventions be noticed, especially by the Sultans of the period. At this point, we would like to express that the process of legalization is important after the concession granted regarding inventions during the Ottoman period.
III. PATENT LAW IN THE OTTOMAN PERIOD
As a result of the discovery of the steam engine, the world has entered into a period in which industrialization and technical progress are at the forefront. In this way, the subject of industrial property, inventions, has risen to the fore with a newer term, patents. Patents, or broadly defined industrial property products and their rights, have been protected since 14745. The Venezia Patent Law is the first and oldest regulation enacted in terms of patent law. Following this law, the English Monopoly Law of 1623 appears as the second regulation6. Although there are various regulations regarding the protectionof inventions, it can be stated that there is no valid regulation other than these two legal regulations.
From the Ottoman history perspective, the first legalization of patent law was realized with the Law of Letters Patent (Ihtira Beratı Kanunu) dated 18797. It is seen that before this law, industrial property right holders were protected by granting concession and inventors were encouraged for inventions. However, as we have mentioned, with the industrial revolution, industrial property rights have been regulated in a way that adapts to the requirements of the time. More importantly, due to the fact that it is important for the progress of the country commercially and economically, the path of legalization was taken.
Ihtira is a word of Arabic origin and means “discovery, device, invention”, while berat means “official document”8. On the other hand, “ihtira beratı/letters patent” means “invention document”, which is referred to a patent today. Due to the fact that the use of the term patent is not preferred, the English term “letters patent” has been translated into Ottoman Turkish as “ihtira beratı”9. However, today both uses have come to an end, and the concept of “patent” has become one of the main terms of industrial property.
A. The Period of Concessions
“Concession” is defined as the granting of a job to a person, an organization, with a special permit, provided that others cannot do it10. Due to the development of industry and the importance of inventions in terms of the presence of states in the world, the Ottoman Empire preferred to grant concessions and permits to increase investment in inventions. Although permits have a narrower scope than concessions, it can be said that basically the monopoly right held due to the concession does not exist in permits11. Concessions can occur in the form of granting a monopoly right to a person. It is seen that many factories have been established in various sectors such as sugar, ice, glassware and metal goods with the concessions granted by the state12. Another area where concessions are used is related to the inventions that are the subject of our study. It is observed that concessions are granted in order to enable inventors to put their inventions into practice, to increase production and, of course, to encourage the creation of new inventions. Concessions found application until the Law of Letters Patent came into force and it was an application that inventors also attach importance to. We would like to express that the inventor may be entitled to a license only within the context of the concession.
When the Kitabü’l Hiyal, which constitutes the basis of our study, is examined, we would like to express that the inventions of Yâfes Çelebi, Calûd and Üzeyir Bey (the Law is in force during a certain period of Üzeyir), who are the heroes of the fiction, within the framework of the science of tricks/ hiyal, are entitled to be awarded a certificate within the framework of Concessions, and not within the framework of the Law. As of the period of the novel, it is also understood from the efforts of the heroes to make their inventions known, that it is necessary to legislate. However, it should be stated that these inventions can only be protected with a concession within the context of the industrial property law of the Ottoman period.
Although there is no text of the law on the procedure for granting concessions, certain conditions were established for these concessions to be granted regarding inventions. It is observed that when granting concessions in the Ottoman Empire, the usefulness and applicability of the invention is evaluated, and there are no restrictions on the type of invention and the area in which it will be applied13. However, we would like to express that another element that is paid attention to at this point is the public interest. For example; it is accepted that it is not appropriate to grant monopoly rights related to agricultural products14. This situation also shows that the Ottoman practice prioritizes the public interest in case that there might be a conflict between the public interest and the monopoly right of the inventor.
Concessions found application until the Law of Letters Patent came into force and it was an application that inventors also attach importance to.
It is observed that the privileges granted for inventions are not granted for an unlimited period of time, and the concession period is limited to fifteen years15. With the possession of a concession, all actions such as the use/ development of the invention etc., are prohibited without the consent of the right holder, as is the case with today’s patent registration. If it is determined that one of these acts has been performed, the recall of the products, etc. is involved16.
While applying for a concession, the inventor is required to prove that his invention is feasible with plans/ pictures and calculations either at the stage of application or within three months from the date of application17. Otherwise, the concession is not granted and/ or the concession granted is invalidated.
B. The Period of Law of Letters Patent
Many reasons, such as the lack of systematicity of granting concessions, especially the fact that foreign inventors do not prefer the concession procedure of the Ottoman Empire against the patent protections of European countries, have led to the legalization. During the period of concessions, the state grants concessions for inventions to those who request them within the context of certain rules. However, the lack of a written regulation on concession caused various objections from those who request concessions. Concession periods or fees received from concession are issues that are usually the subject of discussion because there is no written law. Therefore, the Ottoman Empire preferred to create a law text and introduce regulations as a requirement of the time. The Law of Letters Patent is not an organic law. The Law of Letters Patent, which is a translation of the French Patent Law of 1844, was created in 1871 and started to be applied in 188018. It is said in the first article of the Law;
“All rights arising from inventions, discoveres and improvements regarding the science and industry belong to the inventor. Benefiting from these rights is limited for the duration mentioned in the below articles on the condition that the Party State’s approval by providing an invention certificate.”
The article basically stated that the inventor’s right will be protected by granting a letters patent to an invention that is new in the industry. It is regulated by the law that a completely new invention can be created, as well as those who find and/ or develop a new form/ style of using an existing invention will be granted a letters patent for a certain period of time. The person who receives the letters patent will exclusively own all the rights to the invention, may transfer the rights arising from this letters patent, or may enter into an agreement with third parties for use for a certain period of time19. The duration of the rights granted to the inventor with the letters patent is fifteen years, as in the case of privileges. The inventor has the rights to improve/ modify his invention during this period. By notifying these changes, inventor can get new extra letters patent approved. The duration of these developments is arranged in such a way that it depends on the actual letters patent. The fifteen-year period granted to the inventor is the date on which the request for letters patent is submitted. As applied in today’s law, the protection period is realized by application.
Applications for letters patent are made by submitting a petition to the Ministry of Commerce and Agriculture, with a description and a picture and payment of the application fee. The application petition must clearly contain the invented product and its description must be understandable. Otherwise, the application is refused. The opinion that the application is not suitable is informed to the applicant. After that, it is requested to eliminate this deficiency within three months. If the deficiency is not corrected within the period, the application is deleted from the records. In addition, the absence of scribbling, deletion, etc. falsification in any of the documents subject to the application is specified in the article 6 of the Law.
Although letters patents are granted on a periodic basis, the fifteen-year period is not necessarily regulated for each letters patent. In other words, after the evaluation of the invention, the protection period is examined within the context of the applicant’s request and it can also be given as years, such as five, ten. In the same way, the cancellation of the patent certificate is discussed if problems with the invention’s applicability or the fact that it is not new arise after the patent has been granted. For this reason, it is stated that inventors should maintain the conditions, especially in terms of applicability. One of the most important conditions is that the invention must be created within two years from the date of granting the letters patent. Otherwise, the letters patent is cancelled.
In the text of the law, a different process is envisaged for inventions related to the preservation of the country. These inventions, which have the nature to increase the power of the state in the military field, are granted a patent only if they are successful in practice. An invention and a letters patent of this nature are purchased by the state and a medal is given to the inventor according to the nature, importance and effect of the invention. The Law of Letters Patent has formed the basis of technical law, which is called patent law today. “With the Law of Letters Patent enacted in 1879, the Ottoman State has now put the protection of industrial property rights into a modern legal context.” The law remained in force until 1995, with minor amendments made by national and international agreements over time20.
IV. CONCLUSION
Kitab’ul Hiyel, which presents to us certain sections of the lives of three different characters that have passed in inventions since the apprenticeship period to the present; proves that it is not just a fictional text, the way the events of the period are conveyed, the characters’ desire for power and knowledge contained in the subtext, with a detailed explanation of the inventions in the text. We witness that our heroes who lived in the last century of the Ottoman Empire, lived in a period when innovations and inventions were supported and reforms were carried out by the state in this regard have difficulty announcing their inventions despite everything.
It is seen that an application has been made for letters patent by Yâfes Çelebi in the text, but due to the arbitrary actions of the person/s who will examine, a final decision on some kind of invention has not been made. Although these people were tried to be reached by various methods, it is seen that the examination of the invention was not carried out and the letters patent could not be obtained. Due to the fact, Yâfes Celebi, who made the application, lived in a period when the Law of Letters Patent was not yet created and inventions were protected by concession. For this reason, we would like to express that the application process made in the text regarding the “letters patent” is not an application within the scope of the law, but an application with a request for concession.
However, the most important inference from the readings we will make about the period in the text is that the personal efforts of the people who created a new and applicable product to announce and create these inventions are insufficient. Because although inventions are supported, the absence of a system in which this is taken under protection causes the inventors to think that they are making a futile effort. Moreover, the character of Yâfes Celebi experiences the invention himself in such a way that it would generate resentment as to create indignation in order for one of his inventions to be noticed, and he saves himself from dying at the last moment. This clearly shows that the period was insufficient in protecting inventions as a system.
BIBLIOGRAPHY
AHMET ŞUAYİP, “İhtira Beratı”, İlm-i Hukuk ve Mukayese-i Kavanin Mecmuası, C. 13.
ARSLAN KAYA, “551 Sayılı Patent Haklarının Korunması Hakkında Kanun Hükmünde Kararname ile Getirilen Zorunlu
Lisans Sistemi, "İstanbul Üniversitesi Hukuk Fakültesi Mecmuası,Cilt 55, Sayı 1-2, 1996.
FERİT DEVELLİOĞLU, Osmanlıca- Türkçe Ansiklopedik Lügat.
GÜNDÜZ ÖKÇÜN, “XIX. Yüzyılın İkinci Yarısında İmalat Sanayii Alanında Verilen Ruhsat ve İmtiyazların Ana Çizgileri”, Ankara Üniversitesi SBF Dergisi, C. 27, S. 1, 1972.
İHSAN OKTAY ANAR, Kitab’ül Hiyel, İletişim Yayınları,İstanbul 2010.
MEHMET BAKIR ŞENGÜL, “İhsan Oktay Anar’ın Kitab’ülHiyel Adli Romanı Üzerine Bir İnceleme”, Humanities Sciences,
C. 5, S. 3 2010.
SILA ŞAHİN, Osmanlı Devleti’nde Patent Uygulaması: İhtira Beratı Kanunu, Sakarya 2019.
TOLGA AKAY, Osmanlı Devleti’nde Fikri Mülkiyet, Kayseri 2015.
YAŞAR BÜLBÜL/ RAHMİ DENİZ ÖZBAY, “Sanayi Devrimi’nin Tartışmalı Bir Kurumu Olarak Patent ve Osmanlı’da İhtira Beratı Kanunu”, Marmara Üniversitesi, İ.İ.B.F. Dergisi,Yıl 2020, Cilt XXVIII, Sayı I.
FOOTNOTE
1 https://islamansiklopedisi.org.tr/hiyel- mekanik#:~:text=Arap%C3%A7a%20h%C3%AEle%20(h%C3%BCner%2C%20tedbir%
2C,y%C3%B6nelik%20bir%20%C5%9Fubesi%20olarak%20g%C3%B-6sterir (Access Date:: 31.10.2022).
2 İhsan Oktay Anar, Kitab’ül Hiyel,İletişim Yayınları, İstanbul 2010, p. 66.
3 Anar, p. 84.
4 Mehmet Bakır Şengül, “İhsan Oktay.Anar’ın Kitab’ül Hiyel Adli Romanı Üzerine Bir İnceleme”, Humanities Sciences, Vol. 5, Is. 3, 2010, p. 197.
5 Sıla Şahin, Osmanlı Devleti’nde Patent Uygulaması: İhtira Beratı Kanunu, Sakarya, 2019, p. 2.
6 Şahin, p. 2.
7 Yaşar Bülbül/ Rahmi Deniz Özbay, “Sanayi Devrimi’nin Tartışmalı Bir Kurumu Olarak Patent ve Osmanlı’da İhtira Beratı Kanunu”, Marmara Üniversitesi, İ.İ.B.F. Dergisi, Yıl 2020, Vol. XXVIII, Is. I, p. 50.
8 Şahin, p. 15.
9 Tolga Akay, Osmanlı Devleti’nde Fikri Mülkiyet, Kayseri, 2015, p. 42.
10 Ferit Devellioğlu, Osmanlıca-Türkçe Ansiklopedik Lügat, p. 434.
11 Akay, p. 161.
12 A. Gündüz Ökçün, “XIX. Yüzyılın İkinci Yarısında İmalat Sanayii AlanındaVerilen Ruhsat ve İmtiyazların Ana Çizgileri”, Ankara Üniversitesi SBF Der gisi, Vol. XXVII, 1972, p. 136.
13 Akay, p. 162.
14 For example; an Ottoman citizen who is a farmer invented a method to produce paper from a plant and requested a concession for a period of 25 years. However his request was refused and he received concession only for one year because his invention would create a monopoly on agricultural land and products.
15 Akay, p. 164.
16 Akay, p. 244.
17 Akay, p. 166.
18 Ahmet Şuayip, “İhtira Beratı”, İlm-i Hukuk ve Mukayese-i Kavanin Mecmuası, Vol. 13, 1326, p. 31; Şahin, p. 15.
19 Akay, p. 284.
20 Arslan Kaya, “551 Sayılı Patent Haklarının Korunması Hakkında Kanun Hükmünde Kararname ile Getirilen Zorunlu Lisans Sistemi”, İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, Vol. 55, Is. 1-2, 1996 1996, p. 55.
