I. Introduction

The Law No. 5846 on Intellectual and

Artistic Works ("IP Law") is the main legislation in Turkey that is applicable

to copyright related matters. In early May, Ministry of Culture and Tourism's

General Directorate of Copyrights shared on their website a Draft Law Amending

the Law No. 5846 on Intellectual and Artistic Works ("Draft Law") and

announced that the proposed amendments are open for public opinion. The Draft

Law proposes many amendments to the current text of IP Law which include

revisions to certain articles, re-definition of terms and concepts along with

fundamental changes to injunctive reliefs, prevention of online infringements

and functions of collecting societies. As of June 2, 2017, deadline for

submission of opinions has passed and the opinions are currently under the Ministry's

evaluation which will review and revise the Draft Law accordingly, if needed.

IP Law was enacted in 1951 and since

then amended for thirteen times[1].

Ten of these amendments were made in the last sixteen years, as of 2001 and

five were in the last five years, as of 2012. The increased frequency of the

amendments alone proves that IP Law started to regularly fail certain demands

of contemporary issues caused by ever changing and developing information

technologies and technical means such as ease of digital reproduction and

transmission, expanding scope of products that are de facto considered and treated as works though they do not always fall

within the scope of IP Law's definitions and problems encountered during

prevention of infringements including allocation of liability and effectiveness

of prevention measures.

In general, these amendments aimed

to provide necessary revisions and, where these revisions failed, additional

measures to protect copyrighted materials against illegal use. For example,

collecting societies have been included in the law as institutional bodies with

the hope that they can enable collective and thus more effective fight against

illegal use of works. Another example is the Additional Article 4 which

authorized public prosecutors to access ban pirated contents that are

broadcasted on the Internet medium. However, eventually these amendments might

be deemed to have failed to reach their intended purposes and to provide the

required protection.

IP Law regulates establishment of

collecting societies. That said, Turkey has lacked collection societies that are

comprehensive with respect to its area of interest and thereby able to act on

behalf of and effectively protect the works of the copyright holders in that

sector. According to General Directorate of Copyright's statistics, Turkey has

ten (10) collecting societies related to movie sector, six (6) in the music

sector, eight (8) in science and literature sector[2].

Despite the high number of collecting societies in these fields, copyright

holders tend to enforce their copyrights on their own rather than enforcing

them through collecting societies, which might be due to lack of authority and

powers that collecting societies have in terms of acting on behalf and for the

benefit of their members.

The other example, Additional

Article 4 of IP Law, allows rendering access ban decisions upon a right holder's

request on contents illegally broadcasted on the Internet medium. However, the

article fails to clearly define and specify responsibilities of Internet

actors. Although the article seems to provide certain protection based on an

interpretation of its wording at first glance, in practice the application of

the article becomes problematic, as there is already a specific law regulating

the broadcasts in the Internet medium which has no correlation with the

relevant provisions of the IP Law. For instance, the IP Law requires "service" providers

to provide a list of "information content providers" to the Ministry. The Law

No. 5651 on Regulation of Broadcasts via Internet and Prevention of Crimes

Committed Through Such Broadcasts ("Law No. 5651"), on the other

hand, defines Internet actors as "access providers", "hosting providers" and "content

providers". In light of that, if "service providers" are interpreted as "access

providers" and "information content providers" are interpreted as "content

providers", then the access providers are required to provide a list of all

content providers on the Internet, which might be billions of people, to the

Ministry. Clearly, the access providers cannot be expected to comply with such

a request as it is nearly impossible to maintain a list as such.

In addition to the foregoing, the IP

Law fails to provide adequate protection with respect to audiovisual contents.

Article 5 of the current IP Law defines cinematographic works and does not

include any reference to audiovisual contents, and remains as it was drafted

back in 1951. In order to protect audiovisual contents other than

cinematographic works such as television programs which may qualify as a work,

the Draft Law could have defined audiovisual works in a way that is parallel to

the European Union Directive 2010/13/EU which specifically regulates

audiovisual media services to encompass present and future format of

audiovisual contents in addition to films. The use of the term audiovisual

content would also help create harmony with global developments on the issue

since regulations in U.S.A. and European Union along with other countries

around the world adopt or are in the process of adopting use of the term

audiovisual.

In light of the foregoing, the Draft

Law is expected to provide clearer regulations and more effective measures on

these issues along with other amendments that might update the current scope of

the IP Law which either excludes from its scope certain contents that are

considered works throughout the world in other countries or allows their

inclusion only through wide interpretations of its provisions.

Based on the foregoing remarks, the

following discusses the most significant issues that the Draft Law offers to

the copyright realm.

II. Online

Piracy

Draft Law regulates prevention of

infringements through the Internet medium with an independent article and

proposed addition of Article 77/B to the IP Law. First paragraph of the

relevant article states that those, whose rights, which are protected within

the scope of IP Law, are violated, may apply to the "content provider or

hosting provider" by way of communication means provided on their "Internet

pages" and request removal of relevant contents. Although this provision

apparently aims to provide a regulation compatible with the Law No. 5651 by

referring the terms defined therein, the provision does not take into account differences

as to liabilities of Internet actors. The article does not make any

distinctions between the content providers and hosting providers whose

responsibilities, as determined in the Law No. 5651, are fundamentally different.

According to the Law No. 5651, hosting providers are not required check whether

the hosted content is lawful or not, whereas content providers are responsible

for any kind of content they present to the Internet medium. Current wording of

the proposed provision might result in a situation where right holders prefer

to address hosting providers, who are more likely to be reached easily, without

even trying to reach content providers, who are in fact the party responsible

for the relevant infringement. This might not be an effective measure to fight

against piracy as the pirating parties in question, the content providers would

not come into equation during the process and thus might not face the

consequences of their actions.

Furthermore, Article 77/B proposed

by the Draft Law requires the relevant content provider or the hosting provider

to comply with the removal request within "twenty four hours". This period is

quite short to take action particularly for hosting providers who engage in huge

amounts of content available on their websites. Additionally, determination of

a certain time period, especially a short one, regarding these obligations

within in the law might create practical difficulties and unintended

consequences for the involved parties. For example, hosting providers that host

large amounts of contents and that try to comply with these requests taking

into consideration fundamental rights and freedoms of Internet users might be

forced to take action on certain contents without conducting a proper analysis

of the contents subject to the relevant requests. As a result of this practice,

contents that are lawfully broadcasted by Internet users could also be subject

to removal by the hosting providers in an attempt to avoid potential criminal

and monetary sanctions. Indeed, in the United States of America and European

Union, the legislation on the issue does not determine a fixed time period for

hosting providers to comply with their obligations. Yet, they are obliged to

take the required actions "promptly"[3].

This approach might be more in line with the reality of the large amounts of

contents that certain hosting providers are required to handle on a daily

basis. Accordingly, they are required to take action promptly without a predetermined

time limitation as the necessary time can significantly change based on the

scope of the relevant request.

According to eight paragraph of the proposed Article 77/B, if someone continues a violation after two warnings sent by

the Ministry or an institution authorized by the Ministry informing him/her that

his/her dissemination constitutes a violation and the consequences of such

actions; then public prosecutor shall decide to decelerate the connection speed

of the Internet service provided to that person. This provision brings a

legitimacy, a legal ground for "throttling" which has been discussed in the

recent years as a method of restriction of illegal contents in Turkey. The number

of warnings to be sent to user before the user's connection speed is decelerated

is proposed as two (2). However, taking into account the digital literacy and

experience of an average user, it is easy and probable for users to

accidentally view, stream and/or download illegal content on the Internet and

thereby unintentionally take part in an infringement. Moreover, users with

malicious intentions might employ many tools, technics and other means and use

copyrighted materials unlawfully in order to direct such inexperienced users to

contents on their websites for purposes of gaining illegitimate benefits.

Therefore, two warnings that will be given to the user before decelerating

their connection speed might not be enough to protect the users against

accidental and unwanted use. The application of the provision as is might lead

to restrictions on citizen's freedom of communication where their actions may,

in fact, be due to uninformed and/or bad judgment on their side regarding a

content and/or hosting provider. In that line of thought, countries around the

world adopt at least a three strike system in general and there are countries

that prefer a warning count even higher than that. For instance, the U.S.A.

adopted a six warning requirement before implementing measures against a user.

Tenth paragraph of the proposed Article 77/B regulates establishment of centers to prevent violations of

rights within the scope of the article. We understand that the purpose of these

centers is to enable implementation of swift action on infringing contents

where irreparable damages may be incurred by the right holder, if such action

is not taken. That said, granting the authority to implement the sanctions

determined in this article to an administrative authority might lead to

disproportionate interference with fundamental rights and freedoms, unless

there is an effective supervision of the courts as to activities of these

centers. Additionally, wide interpretation of the provision might lead to

instances in its application where an administrative agent is granted through

administrative and/or technical structures or systems the authority to decide

and act as if she/he is a judge. The article does not precisely define the

authority of these centers to prevent applications. In line with that, there

might have been an explicit reference to fundamental rights and freedoms of

Internet users to emphasize the necessity of establishing a balance between

these rights and freedoms; and the rights of the copyright holders and to

prevent administrative agents from intervening with the foregoing rights and

freedoms.

On a separate note, these centers may also not be as effective

as it is contemplated. Considering the amount of content currently available on

the Internet and the geometric increase thereof, it would require a great

amount of resources to establish new centers from ground and to maintain these

centers for the purposes of handling copyright infringements on the Internet

medium. Moreover, administrative actions of these centers are highly likely to

be disputed before courts which might lead to ineffectiveness of these centers.

In light of the foregoing, these "centers" may not yield the results expected

from them.

III. Collecting Societies

IP Law currently includes provisions pertaining to collecting

societies. However, the amendments proposed in the Draft Law include many

revisions and additions to the current legal framework of these societies. Some

of these changes that might be of importance to and have an impact on the

current practice have been mentioned below briefly.

According to proposed version of Article 42 of the IP Law,

collective management of rights, which include determination of tariffs,

preparation of agreements, collection and distribution of revenues, supervision

of uses and application to administrative, judicial and criminal procedures

shall be conducted by collecting societies. The wording of the article as

proposed in the Draft Law is significantly different than the wording of the

current IP Law as it clearly states that these activities may only be conducted

by collecting societies. In addition, the article also determines that two or

more collecting societies may establish a collective licensing association

together in order to manage their members' rights more effectively (Proposed

Article 42-3). This approach attests the law makers' will to involve collecting

societies more in the management and protection of copyrights in the Turkish jurisdiction.

Moreover, the Draft Law also increases the number of members

that is required to establish a new collecting society in a sector where there

is already an existing collecting society from one third to half of the member

count of the existing collecting society (Proposed Article 42/A-2). This

increase in the necessary member count might also prove useful in preventing

establishment of several collecting societies in the same sector which

inevitably decreases their effectiveness and promote copyright holders to work

together within the roof of existing collecting societies.

In addition to the foregoing and more importantly, the proposed

Article 42/E states that right to demand a proper price and right to demand a

cut from resale cannot be pursued individually. According to the provision,

these rights may be pursued by the collecting society, if there is only one in

the relevant sector; or by a collective licensing association that shall be

authorized by the Ministry if there is more than one collecting society in that

sector. Furthermore, certain rights of related right holders may be managed by

the collective licensing association even if these related right holders did

not provide an authorization to a collecting society. This provision requires

copyright holders to become members of collecting societies if they wish to

benefit from the foregoing rights provided by the IP Law. This requirement,

along with other authorizations provided to collecting societies would

inevitably increase the involvement of copyright holders in collecting

societies and thus create more active and involved collecting societies that

are more effective in their functions.

Active, involved and effective collecting societies in specific

sectors would ultimately result in better protection of existing copyrighted

works and a better environment for creation of more works, since parties

involved in copyrighted materials would be more open to invest in new productions,

ventures and co-operations without any fear but with trust knowing that there

are adequate measures in place protecting their commercial and individual

investments.

IV. Databases

Current version of Additional Article 8 of the IP Law already protects

databases. The amendments proposed in the Draft Law provide a more detailed

protection for right holders of databases along with certain exceptions to that

protection. In the reasoning of this article in the Draft Law, it is indicated

that it is proposed based on the EU Directive 96/9/EC on the legal protection

of databases. However, this directive has been harshly criticized by the EU

Commission in their DG Internal Market and Services Working Paper[4]. The EU

Commission indicated that the economic impact of the "sui generis" right on

database production was unproven and that the empirical evidence was not enough

to suggest that such protection is necessary for a thriving industry (Section

1.4). Furthermore, the European Parliament also stated that the commission's

evaluation of the directive on databases considers the directive as an

impediment to the development of a European data-driven economy and called on

the commission to abolish the directive (Section 4.1)[5]. More

recently, EU Commission launched a public consultation on May 24, 2017 to

assess the legislation on databases by evaluating its impact on users and

identifying possible needs of adjustment, which attested that its existing

legislation, which the proposed article is based on, is insufficient to ensure

full legal certainty and is not useful[6]. In

light of the foregoing, it might be suggested that the protection provided by

the article to databases may have negative effects on the growth of national

digital economy instead of helping it develop based on the EU experience on the

matter.

V. Exceptional Uses

Current text of the IP Law provides an exception for private use

of copyrighted material subject to the conditions set forth in Article 38. The

Draft Law proposes four other exceptions in addition to private use which are

namely (i) temporary reproduction, (ii) reproduction through photocopy and

other similar means, (iii) freedoms for purposes of use by the disabled and

(iv) temporary reproductions of radio-television institutions. Furthermore, in

addition to uses for education and teaching purposes, the Draft Law proposes (a)

lending to public, (b) reproductions and distributions for archiving purposes

and (c) incidental reproductions and uses for parody purposes.

Although determination of exceptional circumstances and uses might

prove useful in clarifying legally allowed uses of copyrighted materials, it

might also cause the legislation to become out-of-date more easily due to rapid

technological and economic developments and changes that might render the scope

of these exceptions too wide or too narrow depending on the relevant case.

For instance, the current wording of Article 38/A allows

temporary or incidental reproductions that are essential and inseparable part

of a technological transaction process aiming rightful use or transfer of works

to third parties within a network; and that do not have an independent

financial value. The article provides an exception for certain temporary

reproductions of no financial value in order to enable use of various

technological means that are employed for lawful use of works and contents but

which require these temporary reproductions for their functions. That said,

considering the recent technological developments in today's world and taking

into account future applications that might be applied to works and contents

that are protected under IP Law, such temporary reproductions might also be

required for purposes other than transfers in network. For example, the scope

of the article might be extended to include and provide exception to allow

similar temporary reproductions for scientific purposes and researches as well.

Moreover, most of these exceptional uses and/or reproductions

are allowed on condition that there is no financial value, purpose or benefit

attached to such activities. Adopting such a condition might be considered in

violation of Turkey's obligations under the Berne Convention for the Protection

of Literary and Artistic Works. Article 9/2 of the Berne Convention requires

signatory parties to permit reproductions of works in certain special cases,

provided that such reproductions do not conflict with normal exploitations of

the works and do not unreasonably prejudice the legitimate interests of the

authors[7].

Furthermore, this requirement might also affect innovative

initiatives from benefitting from the exceptions provided in the article and restrict

artistic freedoms and legitimate financial benefits that might be acquired by

non-governmental organizations through fair use of copyrighted materials

otherwise. The conditions determined in the Berne Convention might alone be sufficient

for acceptable uses regarding works.

VI. Conclusion

The Draft Law provides hope for better collective management of

copyrights through collecting societies that might be of help with respect to

licensing of works in great quantities which is needed in today's digital word

where almost infinite reproductions are possible. That said, considering the

lack of reference and thus protection to "audiovisual contents", the article

regarding databases, and the lack of an exception for scientific studies and

researches within the scope of lawful uses along with the requirement as to not

having a financial purpose; one might argue that the Draft Law still fails to

take into account recent developments in the world with respect copyright

issues. Moreover, the provisions set forth to fight against online piracy seem

to disregard the specific law regarding unlawful contents broadcasted on the

Internet medium and existing practice thereof as the article does not even

differentiate between the responsibilities of Internet actors. Despite the

foregoing concerns, the provisions proposed by the Draft Law will still bring a

fresh breath to the copyright realm.

Authors: Gönenç Gürkaynak

LLM. Esq., Burak Yeşilaltay and Türker Doygun, ELIG, Attorneys-at-Law.

First published in Mondaq on June 22,

2017.

[1] http://www.mevzuat.gov.tr/MevzuatMetin/1.3.5846.pdf

[2] http://www.telifhaklari.gov.tr/Turkiye-de-Meslek-Birlikleri

[3]Legislations in the USA and EU respectively at https://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/pdf/USCODE-2010-title17-chap5-sec512.pdf and http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32000L0031&from=EN

[4] First evaluation of Directive 96/9/EC on the legal

protection of databases; available in English at http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf

[5] European Parliament resolution of 19 January 2016 on

Towards a Digital Single Market Act (2015/2147(INI)), available in English at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P8-TA-2016-0009+0+DOC+PDF+V0//EN

[6] https://ec.europa.eu/digital-single-market/en/news/commission-launches-public-consultation-database-directive

[7] Available in Turkish at http://www.telifhaklari.gov.tr/resources/uploads/2012/03/18/2012_03_18_349175.pdf and in English at http://www.wipo.int/edocs/lexdocs/treaties/en/berne/trt_berne_001en.pdf