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