Nowadays, the most significant efforts and works for preservation of Intellectual and Industrial Property Rights have been carried out under the headline of "Fight Against Piracy". Considering the fact that pirated (counterfeited) materials could be easily accessed nationwide even at the smallest towns, the stage arrived in the fight against piracy may easily be assessed. Nevertheless, until now, particularly on the Law No.5846 on Intellectual and Artistic Works, numerous revisions and amendments have been made on the applicable laws, specialized courts have been set up, special units have been incorporated by security forces in order to carry out fighting against piracy readily and effectively, unfortunately the desired result could not be achieved. Under the circumstances, we are compelled to think that the primary challenge has been originated from deficiencies or mistakes incurred in the course of implementation.
Primarily, what we could point out is that although methods implemented at the time of actual struggle were attaining successful results at many times in terms of quality have been still far below the desired level in terms of quantity. Even if sometimes their numbers are inadequate in great cities, while specialized units have performed their duty, lack of personnel who have a good command of the subject and are well-versed in their occupation in other places has been receiving attention. At the same time proceedings related with the fight against piracy have been considered as less important than the other lawful practices by some units which are exercising their duty on the subject and therefore such deficiencies are required to be remedied and corrected by providing appropriate trainings in both cases.
In the course of investigation and trail of suspects that have been caught, not so much problems have been encountered at the office of the prosecutor and courts dealing densely with the subject, however certain parts of units of office of prosecutor and courts have been exercising practices which are contrary to the law and public conscious (unconscionable); examples thereof are provided hereunder:
a) The first problem has been arising in the search applications for suspected places; it is already established and determined by enforcement units that certain parts of Courts have never accepted and acknowledged the search decision in any manner whatsoever. Among their justifications for rejection (non-suit) the following is the most common grounds for rejection: "determination of evidence should be made via the civil court or you must bring evidence to us". Hâlbuki savcılık ve mahkemeyle maalesef hayatın akışı hakkında yeterli bilgiye sahip olmadıkları için ya da konuyu fazla önemsemedikleri için, şüpheli yerlerden delil getirilmesini talep etmektedirler. However, it is obvious that any firm or lawyer is unable to take concrete evidence from any business place or any enterprise making secret production. For example a slip or bill of a fake (counterfeit) product cannot be available, or photograph of such a material cannot be taken in due manner, agent cannot be used, witness cannot be heard, because these are dangerous; testimony of the lawyer cannot be binding, or nobody can record in a document that he/she loaded a pirated software; it may only be seen when the business place is visited. Besides, it is out of question and meaningless that we may discuss the idea that a civil court should make a determination (recording of) on evidence. It is the matter of curiosity and amazement that how a judge and bailiff of civil court could do an operation at a business place that is selling pirated books or CDs.
b) Rulings of non-prosecution KYO) or acquittal rendered during the investigation or at the phase of trail proceedings however have bought very amazing and interesting justifications before us. For example, ruling of acquittal or non-prosecution has been given on grounds that the owner of the computer with a pirated software loaded on the day which was detected at the business place of a computer seller was another person, unfortunately sometimes it was impossible to explain to the competent Court that albeit owner of the computer is another person subject-matter of the offense was that the software had been illegally loaded on the Computer at the said business place.
A computer which has been caught with a pirated product in it can be released to its owner without subjecting it to examination and inspection by an expert. Here, fault of the Office of the Prosecutor however has been ignored by the Ministry. Nevertheless, a procedure may be issued on such kind of investigations by the Ministry and all offices of prosecutor and courts may be "advised" that they should comply with all these procedures.
It is necessary that Security Departments and offices of prosecutor, operating jointly, should be ensured to have the persons who are grouped or become a gang surveyed and traced technically (wire-tapping) particularly on the offense of piracy and thus such type of organizations emerging as above should be collapsed and eliminated.
The last and most important matter however is that the related Panel of the Supreme Court of Appeals is very slow in reviewing and examining the cases. Any binding precedent of the related criminal Panel has not yet arrived at the courts. No verdict on any issue which may direct local courts has been rendered. We are mentioning so much longer time that hundreds of court files have been subjected to and barred by prescription. Consequence of this situation is however obvious; None of the suspects believes that when his file is appealed to higher court his penalty will be executed. Inasmuch as the fact that the offender believes not to be punished, he continues to proceed with his actions easily, and since the offender does not have any finalized punishment he does not receive any penalty different from his other offenses, but victims have been continuing to suffer damage, investments made in our country have been hampered, prestige of the country on the other hand decreases to almost "0". At present, even imposition of penalties will give great acceleration to the struggle against piracy. Thus, great number of persons who made it their career would be ensured to have served their sentences.
Published in "Medyakolik Gazetesi" (Media colic Newspaper) April 2008 Issue 26
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