Emir Aksoy LL.M, LL.M. IP
Scope of Protection
Copyright protection in Turkey is regulated under the Intellectual and Artistic Works Law No. 5846 (hereinafter will be referred as “the Law”). Copyright arises automatically on creation of work, whereas “work” is defined as any intellectual or artistic product bearing the characteristic of its author, which are works that fall under the categories below:
- scientific and literary
- fine arts
These four categories are numerus clausus, and are therefore listed exhaustively. Even though the categories are limited there are subcategories for each category. For example, computer software falls under the subcategory of scientific and literary works as per Article 2 of the Law.
Turkey is also member to numerous international agreements related to Copyright Law, which are listed below:
- Berne Convention for the Protection of Literary and Artistic Works;
- the TRIPS Agreement;
- the Paris Convention;
- the Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of Their Phonograms;
- the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations 1961;
- WIPO Copyright Treaty;
- the Madrid Protocol; and
- the European Convention on Cinematographic Co-Production.
Registration of Copyright
Registration of copyright is not a mandatory requirement for the establishment of rights, nevertheless according to Article 13 of the Law for movies and phonograms as well as computer games there is a mandatory registration requirement in order to prevent the violation of rights, there is also an optional way to register other types of works protected under the Law to the register administered by the Ministry of Culture and Tourism. The Ministry cannot be held responsible for these procedures, which are declaration based, however fraudulent declarations shall be subject to the legal and criminal sanctions set out in this law. The abovementioned ways to register your copyright does not grants a right over the works, but gives the author an advantage over the other parties in case of a conflict in the ownership of the work.
According to Article 81 of the Law, it is compulsory to affix banderoles on the reproduced copies of musical and cinematographic works and on non-periodical publications (such as books). It is also compulsory, upon the request of the author or right holder, to affix banderoles on the reproduced copies of other works that can be easily copied. Banderoles shall be printed and sold by the Ministry. Banderoles may also be sold through the agency of the collecting societies at the sale price determined by the Ministry.
The protection term starts when the work gets public. The protection term lasts until 70 years following the death of the author and in case of multiple authors the term will expire 70 years after the death of the last surviving author. In case the author of the work is a legal entity, the term expires 70 years following the work becomes public.
Infringement of Copyright
A copyright infringement occurs under the following circumstances:
- Infringement of the author’s moral rights
- Reproduction, distribution, or communication of the work without the rightful authorization
- Adaptation of the work without the rightful authorization
Exemption from Infringement
However, it should be noted that the Law also sets forth exemptions for the infringements noted above. Accordingly, in some cases, the use of copyrighted work may not constitute a copyright infringement even though it falls under the scope of the above-mentioned circumstances. Those are as follows:
- Use due to public order or due to public interest
- Personal use
- Educational purposes
- Expiration of copyright.
- Freedom of (limited) quotation
Type of Claims in Case of an Infringement
The copyright holder can file civil claims and criminal actions against the infringer in case of an infringement. Possible civil claims are cessation of infringement, prevention of infringement, removal and destruction of infringing material, claims for material and moral damages and publication of the verdict of the court. Whereas, criminal liability for copyright infringement is set out in the Article 71 of the Law. There are sanctions varying from judicial fines to up to 5 years of imprisonment.
Competent Courts and the Length of the Trial Process
Specialized IP civil and criminal courts located in Istanbul, Ankara and Izmir are competent for copyright disputes. In other cities, one of the regular civil courts is assigned as a specialized IP court and copyright must be enforced in them.
Typical length of a court action regarding copyright at the first instance would take between 12 to 24 months regarding the complexity of the case. Decision of the First Instance Court can be appealed before the District Courts and this appeal process would take an additional 12 months. Lastly, the District Court Decisions can be appealed before the Court of Appeal and this process would take an additional 15 months.