Legislation & Enforcement
Subject Matter & Scope of Copyright
Copyright Formalities
Ownership and Transfer
Duration of Copyright
Copyright Infringement & Remedies
Relationship to Foreign Rights
Update & Trends
Law Stated Date

LEGISLATION AND ENFORCEMENT

Relevant legislation

What is the relevant legislation?

Copyright is granted under the Law on Intellectual and Artistic Works 5846 of Turkey. In addition, the Draft Law Amending the Law No. 5846 was released on May 5, 2017 for public comment on the Turkish Ministry of Culture's website with proposed amendments for at least 38 articles, including; clear notification and removal procedures for copyright infringement on the Internet; re-organisation of collecting societies to refer the difficulties of effective collective rights management, right to equitable remuneration for actors and film authors for future use of their films, right to use works for caricature, parody or pastiche; and judicial discretion regarding the compensation stated in  article 76 of Law on Intellectual and Artistic Works.

The Draft Law aims to establish a functioning copyright system, increase the creation of qualified works, and generalise licensing. However, the draft has not yet entered into force. Since Turkey is a party to international conventions on copyright, these conventions also affect Turkish legislation.

Enforcement authorities

Who enforces it?

There are specialised intellectual property civil and criminal courts in Istanbul, Ankara, and Izmir. Copyright is enforced before these courts if the dispute falls within the jurisdiction of one of these areas. In other cities, one of the regular  civil courts is assigned as a specialised IP court, and copyright must be enforced in them.

Copyright registration certificates can be used to enforce copyright before custom authorities. The acceptance of the copyright registration through the customs authority will prompt customs tracking on the passing of possible infringing goods that will initiate the suspension of release of such products. Through the 'IP RIGHTS portal' used by the Ministry of Commerce, rights holders can apply for copyright infringement at customs. With this programme, the obligation of the rights holders to apply separately to each relevant customs administration for the protection of their intellectual property rights at customs was removed.

Online and digital regulation

Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

For online copyright infringement, additional article 4 of Law No. 5846 regulates the essential 'notice and takedown' procedure. This regulation provides that the copyright owner first sends a notification to the content provider that supplies the applicable material for use on websites and requests the removal of infringing content within three days. If the violation continues, a request must then be addressed to the Public Prosecutor asking that the service being provided be removed within three days.

In parallel with this provision, Law No. 5651 on the Regulation of Publication on the Internet and Suppression of Crimes Committed by Means of Such Publications regulates the general principles as to the liability of content providers, social network providers, service providers, and public use providers, who must remove content from websites if they are informed of infringements.

Additionally, the Draft Bill to Amend Law No. 5846 was published online on 5 May 2017 for public opinion. The Draft Bill abolishes additional article 4 of Law No. 5846 and envisages a new article 77/B, regarding digital infringement by content providers. It is planned that article 77/B will harmonise the notice and takedown procedures provided under Law No. 5651 and additional article 4 of Law No. 5846.

Extraterritorial application

Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign- operated websites that infringe copyright?

Since copyright protection arises irrespective of the nationality of the creator, there is no extraterritorial application besides general regulations.

Turkish courts cannot grant cross-border or extraterritorial injunctions. However, they can decide on access restriction orders to prevent access to an internet site containing infringing materials based in Turkey.

Agency

Is there a centralised copyright agency? What does this agency do?

There is the General Directorate of Copyrights which is the authorised body based within the Ministry of Culture and Tourism. The duties of the General Directorate of Copyrights are regulated in Law No. 4848, article 11. The Directorate oversees the recording and registering copyright.

SUBJECT MATTER AND SCOPE OF COPYRIGHT

Protectable works

What types of works may be protected by copyright?

  • original works that bear the characteristics and originality of the author; and
  • works capable of being classified as:
    • science and literature
    • music
    • fine art
    • cinema

There are also sub-categories for each category. For instance, computer software, database, performance arts, written works of choreography, maps, plans, projects, architectural designs are protected as scientific and literary works. Musical compositions are protected as musical works. Sculptures, stone, wood, graphic works, cartoons etc. are protected as works of fine art.

Rights covered

What types of rights are covered by copyright?

Copyright is a type of automatic protection of moral and economic rights for any intellectual or artistic work bearing the characteristic of its author. Economic rights authorise rights holders to derive financial reward from the use of their works by others. Moral rights allow authors and creators to enforce artistic integrity of the work and protect the link between the characteristic of the authors and their work.

Moral rights include disclosing the work, attribution of the work, protecting the integrity of the work, and rights against the owner and possession. Economic rights authorise or prohibit the rights holder to adaptation, reproduction, distribution, representation, and to publicise.

Excluded works

What may not be protected by copyright?

Copyright does not protect an idea. The idea or plan must be fixed in a 'tangible form of expression', meaning that the work must be written or otherwise recorded since copyright protects the expression of that idea or plan.

Fair use and fair dealing

Do the doctrines of 'fair use' or 'fair dealing' exist, and, if so, what are the standards used in determining whether a particular use is fair?

According to Turkish Copyright Law, a protected work can be used by a person provided that the right owner has granted a licence. For using the protected work without a licence, the respective use shall be covered by the below exceptions set forth by the Law on Intellectual and Artistic Works:

  • the reproduction and publication of officially published texts as well as official speeches given in unions, congress, courts or public meetings;
  • use of a work for educational or information purposes;
  • quoting from written and musical works that have been made public ;
  •  use of a work after its copyright expires; and
  • personal use.

Personal use includes reproducing all intellectual and artistic works for use without pursuing profit. Such reproduction may not prejudice the legitimate interest of the right owners. There is a specific rule provided for computer  programmes stating that the entitled owner of the programme can reproduce and adapt the programme where necessary for their use. The contract may not prohibit the loading, running and error correction of a computer programme, by the entitled owner of the programme.

Architectural works

Are architectural works protected by copyright? How?

Architectural works are considered as a work of art if they have aesthetic value while two-dimensional project plans and three-dimensional models of the architectural works are considered as scientific and literary works. Both categories are protected provided they are original.

Performance rights

Are performance rights covered by copyright? How?

Performance rights are regarded as neighbouring rights and are protected. Without prejudice to the author's rights, performers have the right to be identified as the performer and the right to prevent any distortion, along with the material rights. Performers may transfer these rights to a producer by contract in return for equitable remuneration.

Written permission shall be taken from the author for performing the work.

Neighbouring rights

Are other 'neighbouring rights' recognised? How?

Turkish Law recognises the neighbouring rights of performers, phonogram producers, and radio and television organisations. The protection on the neighbouring rights of the phonogram producers and radio and television organisations cover material rights, while the moral rights of the performers namely, right to be identified as the performer and right to prevent any distortion are also protected.

Moral rights

Are moral rights recognised?

Yes. The Turkish law recognises:

  • The authority of disclosing the work to the public;
  • The authority to designate the name;
  • prohibition of modification; and
  • the author's rights against persons who own or possess a work, such as claiming the temporary possession and right to access the original work as moral rights.

The moral rights are not transferable according to Turkish Law and an author of a work can exercise moral rights even after the material rights are transferred. However, an author may grant a licence to third persons enabling them to use the moral rights.

COPYRIGHT FORMALITIES

Notice

Is there a requirement of copyright notice?

Displaying copyright notice is not required.

However, Turkish Law regulates that it is compulsory to affix reproduced copies of musical and cinematographic works, non-periodical publications and computer programmes with a banderol. Other rights owners whose work can be copied easily can also apply to use a banderol.

The banderol shows that a work is copyrighted and copies are reproduced in accordance with relevant laws.

What are the consequences for failure to use a copyright notice?

There are no consequences of not displaying copyright notice since it is not mandatory.

As for the banderol obligation, selling or renting copies of respective works without a banderol is prohibited and constitutes a crime. Therefore, rights owners cannot exploit works that require a banderol in a commercial manner without one.

Deposit

Is there a requirement of copyright deposit?

Copyright deposit is not required under Turkish Law.

However, to register a work under the General Directorate of Copyright, rights owners shall send a copy of their work.

What are the consequences for failure to make a copyright deposit?

There are no consequences of not making a copyright deposit.

However, registration is mandatory for recorded musical and cinematographic works, non-periodical publications and computer programmes and a copy of the respective work shall be submitted to the General Directorate of Copyright for application.

Registration

Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?

Turkish Law provides a copyright registration system under the General Directorate of Copyright.

Rights owners can register their work by providing relevant documents showing their ownership on the rights. Applications are made through the relevant section of an electronic system called 'e-devlet,' which is a platform that provides public services in Turkey and sends the required documents to the General Directorate of Copyright.

Is copyright registration mandatory? If voluntary, what are the benefits of registration?

There are cases of both mandatory and voluntary registration in Turkey.

Registration of recorded cinematographic and musical works and computer games is mandatory under Turkish law. However, a copyright occurs, and copyright protection begins with the creation of a work, regardless of registration. Reproduced copies of respective works shall be affixed with a banderol, as explained above. Rights owners cannot obtain banderols for non-registered works. Therefore, for rights owners to comply with banderol obligations, works must be registered.

Other works can be registered upon the application of a rights owner voluntarily.

Registration is beneficial for preventing the violation of rights, facilitating proof of rights ownership, and tracking the authority to exercise economic rights.

What are the fees to apply for a copyright registration?

The application fee (at the time of drafting) for voluntary registration is 193,08 lira while the mandatory registration fees (at the time of drafting) vary between 154,50 and 772,50 lira according to type of the work.

The registration fee is calculated proportionally to the public officer wage parameter, which is determined by the Ministry of Treasury and Finance twice a year, for a period of six months.

What are the consequences for failure to register a copyrighted work?

Failing to register works subjected to mandatory registration, prevents commercial exploitation since without registration it is not possible to obtain a banderol and sell or rent copies of the work.

OWNERSHIP AND TRANSFER

Eligible owners

Who is the owner of a copyrighted work?

Under the general basis, the author who creates the work is the owner of the copyright in that work. Article 8 of Law No. 5846 regulates: 'The author of a work is the person who has created it.'

Employee and contractor work

May an employer own a copyrighted work made by an employee?

Copyrighted work made by an employee as part of his duty is regulated under article 18 of the Law  No.  5846. According to the provision:

Provided that the contrary is not determined by a private contract between the parties or is understood from the nature of the situation, the rights on the works created by the officers, servants and employees while they are performing their jobs shall be used by their employers or by the ones who have assigned them to work. The same rule applies in respect of the executive bodies of legal persons.

According to the provision above, the employee remains as the author of the work, but as part of the employment, all economic rights are legally assigned to the employer upon the creation of the work. This rule is only applicable to works created as part of the employee's duty.

May a hiring party own a copyrighted work made by an independent contractor?

If there is no agreement between the parties, copyrighted work would automatically assign to the independent contractor who creates the work. However, ownership could depend on the terms and conditions of any agreement signed by the parties. It is also significant to consider that copyright cannot transferred before it is created.

Joint and collective ownership

May a copyrighted work be co-owned?

If several people have created a work and this work can be split into several parts, this can be considered as a collective ownership which is prescribed under article 9 of the Law.  In these instances, the creators will own the parts of the sections of the work they have created. Where there are many independent works come together by their creators, this can be considered as a collective ownership.

Further to this, if a creation is made by more than one individual which constitutes an indivisible whole, the creator of the work is the union of the persons who made it which is called 'Joint ownership' according to article 10 of the Law. The article states that;

If a work created by the participation of more than one person constitutes an indivisible whole, the author of the work is the union of the persons who created it. The provisions on ordinary partnership shall apply to such union. If one of the authors refuses without good reason to permit a joint transaction, then such permission may be granted by the court. Each of the authors may act individually if the interests of the union are violated.

Transfer of rights

May rights be transferred? If so, what rules and procedures apply?

The moral rights recognised by Law No. 5846 are strictly related to individuals and for this reason, whereas economic rights are transferable, moral rights cannot be transferred or waivered.

Law No. 5846 necessitates that any agreement for the transfer or assignment of copyrights must be in writing, and such an agreement must contain the scope of the right, which is the subject of the transfer or waiver. An agreement in which the author transfers all economic rights generally rather than specifying rights individually is considered invalid.

Although the right to publicise is a moral right, this right is deemed to be used by the transfer of economic rights. If there is no reasonable cause, the person who takes over the economic rights cannot choose to not use this right.

Licensing

May rights be licensed? If so, what rules and procedures apply?

Copyrights can be licensed. A copyright license agreement must be in writing and must contain the scope of the licensed rights in detail. The licensed rights and scope must be expressly and separately listed one by one.

Are there compulsory licences? What are they?

Since protection subsists automatically under Turkish legislation, granting a licence is required for use. The rights holder is not under any general rule obliging them to provide compulsory licences. However, in very limited circumstances a licence may be compulsory pursuant to court ruling as per articles 9/2 and 10/2 of the Law No. 5846.

As per article 9/2 of Law No. 5846; 'Unless otherwise agreed, each of the persons who have jointly created the work may request the other persons' participation in the modification or publication of the whole work. If the other party refuses to participate without good reason, permission may be granted by the court. The same provision shall apply to the exercise of economic rights.'

As per article 10/2; 'The provisions on ordinary partnership shall apply to such union. If one of the authors refuses without good reason to permit a joint transaction, then such permission may be granted by the court. Each of the authors may act individually if the interests of the union are violated.'

Are licences administered by performing rights societies? How?

Article 42 of the law issues the collective licensing bodies and give them the authority to manage the economic rights of their members on the premise of a written settlement or deed between them.

The aims of the collective licensing bodies according to Law are as follows:

  • protection of the common interests of their members;
  • management and following of the rights protected by the Law; and
  • collection and distribution of fees to the right holders.

Termination

Is there any provision for the termination of transfers of rights?

The right to terminate transferred rights is regulated under the article 58 of Law No. 5846. With this article, an author is allowed to terminate the licence or transfer under certain conditions. If the holder of an economic right or a licence exercises his or her rights and authorities insufficiently within the agreed period or, where no period has been determined, within a reasonable period, and if thereby the author's interests are significantly violated, the author may rescind the contract.

Recordal

Can documents evidencing transfers and other transactions be recorded with a government agency?

The documents evidencing the transfer of the rights or licences can be recorded with the Directorate General for Copyright. However, registration is not mandatory for obtaining the rights granted with a transfer or licence and does not affect the validity of the transfer or licence.

DURATION OF COPYRIGHT

Protection start date

When does copyright protection begin?

Protection starts when a work is created without the necessity for notification or registration.

Duration

How long does copyright protection last?

The duration of protection subsists through the life of the author and lasts for 70 years following the death of the author. The 70-year period starts from the beginning of the year following the author's death. In case of multiple authors, the duration will expire 70 years after the death of the last surviving author.

In cases where an author of a work cannot be established, the term of protection as regulated under the first paragraph of article 12 shall be 70 years from the date on which the work was made public, unless the author reveals their name before the expiry of such term.

Does copyright duration depend on when a particular work was created or published?

Protection begins when the work becomes public since an idea or a plan is not protected under copyright, so the copyright duration will not subsist if the work is not published.

The term of protection for works that have been first made public after the death of the author shall be 70 years after the date of death.

So long as the author of a published work cannot be established, the protection must be 70 years from the date on which the work was made public, unless the author reveals their name before the expiry of such term.

Renewal

Do terms of copyright have to be renewed? How?

According to Turkish regulations, terms of copyright do not have to be renewed.

Government extension of protection term

Has your jurisdiction extended the term of copyright protection?

Article 27 of Law No. 5846 has been replaced by article 10 of Law No. 4111. In the former article, the law did not regulate the protection period. With the new regulation, protection periods are regulated.

COPYRIGHT INFRINGEMENT AND REMEDIES

Infringing acts

What constitutes copyright infringement?

Use of a protected work, including partial use, without the permission of the respective rights holder or exceeding the scope of a licence agreement, without being covered by the exceptions prescribed in law constitutes copyright infringement. In addition, use of a protected work in a manner that violates the personal rights of the author is also considered copyright infringement even if the infringer is duly authorised to use the work or is the owner of the material rights.

Vicarious and contributory liability

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

Turkish law prescribes secondary liability as below:

  • The rights holder may file a preliminary injunction request against any person regardless of the intent. For instance, a request can be filed against persons who have possession of illegally reproduced copies of a work for commercial purposes even if those persons are not aware that the copies are unlawful or infringe copyrights.
  • The rights holder may file a criminal complaint against service providers in cases of an infringement. In addition, with the Amendment to the Law on Regulation of Publication on the Internet and Suppression of Crimes Committed by Means of Such Publications, social network providers can be held liable for damages caused by illegal content published on their platforms, provided that the illegality of the content is ratified by a court decision.
  • Employers whose employees infringe copyrights can also be held liable according to Turkish law.

In addition, rights owners can file a lawsuit for the prevention and prohibition of an infringement regardless of the intent of an infringer. In other words, an infringer will be held liable to prevent or prohibit an infringement even they are not aware of the infringement.

Available remedies

What remedies are available against a copyright infringer?

The right owners and the authors of a protected work can seek (1) preliminary injunctions, (2) civil actions and (3) criminal actions against the infringer.

Preliminary Injunction and Provisional Seizure at Customs

Rights owners can seek a preliminary injunction before or after the commencement of proceedings. In case it is deemed necessary for the prevention of substantial damage or an instantaneous danger the court may order:

  • that certain acts be performed or that they are refrained from being performed;
  •  to open or close premises where an infringement is being committed; or
  • the preservation of reproduced copies of a work or moulds and other similar devices for reproduction exclusively enabling the manufacture of such copies.

Besides the preliminary injunction ordered by the court, the customs may cease the importation and exportation of the copies and seize the copies in case of an infringement of rights is likely to occur.

Civil Actions

Civil actions can be filed against an infringer are as below:

  • The author can file a civil action for recognition of ownership.
  • The rights holder may file an action for the determination of an infringement.
  • The rights holder may file an action for prevention of infringement in case of a danger of infringement as well as  in the presence of an ongoing infringement.
  • The rights holder may file an action for the prohibition of infringement and reinstatement.
  • The rights holder can also claim material and moral indemnification for the damages arising from the infringement.

Criminal Actions

Persons who violate the material and moral rights of rights owners, identify themselves as the owner of the protected work unlawfully, quote a work without reference, disclose the content of a work that is not made public, give  insufficient, misleading or deceptive reference about work, and violate the banderol obligation are imposed with sanctions such as imprisonment and punitive fines upon the complaint of a claimant.

Limitation period

Is there a time limit for seeking remedies?

In cases where infringements arise from a contract between the rights owner and an infringer, the time limit for filing a civil action is 10 years. If an infringement constitutes a tort, the time limit is two years after the claimant becomes aware of the damage and the identity of the infringer. Otherwise the time limit is 10 years after the commencement of an infringement.

Where an action also constitutes a crime, and the time limit for the criminal act is longer, the longer period will apply.

Monetary damages

Are monetary damages available for copyright infringement?

Yes, rights owners whose rights are violated can claim indemnification for moral and material damages suffered.

In cases of unauthorised use, the rights owner can also claim the payment of compensation up to three times the amount that could have been demanded if rights had been granted by contract. Apart from indemnification claims, it is not required for the rights owner to suffer material or moral damage; the presence of an unauthorised use is sufficient to claim compensation.

Attorneys' fees and costs

Can attorneys' fees and costs be claimed in an action for copyright infringement?

Yes, according to the Code of Civil Procedure Law, the losing party is obliged to pay the fees, trial expenses and official attorney fees.

Official attorney fees are pre-determined by the law and do not include the contractual fee determined between the client and the attorney. The court awards the official attorney fee to the prevailing party's attorney in the final decision. Official attorney fees are regulated and updated yearly in Minimum Attorney's Fee Tariff issued by the Turkish Bar Association.

Criminal enforcement

Are there criminal copyright provisions? What are they?

Yes. According to the Law on Intellectual and Artistic Works any person who does the following will incur criminal sanctions such as imprisonment and punitive fines, upon the complaint of the rights holder:

  • use the material rights of the respective rights holder without permission;
  • identify themselves as the owner of the work;
  • use the name of another person who is known to the public;
  • quote a work without reference;
  • disclose the content of a work that is not made public;
  • give insufficient, misleading or deceptive reference about a work;
  • violate the banderol obligation; or
  • produce and sell software disabling programmes that prevent the illegal reproduction of the computer programmes.

Online infringement

Are there any specific liabilities, remedies or defences for online copyright infringement?

Yes. In cases where the material and moral rights of rights owners have been violated through service and content providers by transmission, including digital, rights owners can apply to the service or content provider for removal of the content. The service and content providers are obliged to remove the content within three days upon this application. In cases where an infringement continues, the right holders can apply to the Public Prosecutor's Office for suspension of the service being provided by the content provider.

As per the Law on Intellectual and Artistic Works service providers are also obliged to submit a list of the names of their content providers to the Ministry every month.

In addition, with the Amendment on Law on Regulation of Publication on the Internet and Suppression of Crimes Committed by Means of Such Publications, social network providers are held liable for damages caused by illegal content published on their platforms, provided that the illegality of the content is ratified by a court decision.

Prevention measures

How may copyright infringement be prevented (including, for example, customs enforcement measures and any technological notable developments)?

Turkish Law provides preliminary measures, actions for prevention and prohibition of the infringement, notification and criminal complaint against content providers infringing copyright and customs measures.

In addition, collecting societies of the authors or rights holders monitor infringements and notify their members for application to legal remedies.

RELATIONSHIP TO FOREIGN RIGHTS

International conventions

Which international copyright conventions does your country belong to?

Turkey is a party to the Berne Convention, WIPO Copyright Treaty, the Rome Convention and the TRIPS Agreement (the Agreement on Trade-Related Aspects of IP Rights).

What obligations are imposed by your country's membership of international copyright    conventions?

The WIPO Copyright Treaty regulates the protection of works and the rights of their authors in the digital environment. The treaty imposes many obligations to contracting parties. Since the treaty is an agreement under the Berne Convention, any contracting party must comply with the substantive provisions of the Berne Convention.

For instance, obligations concerning technological measures are regulated under article 11. According to the article;

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Another obligatory regulation for contracting parties is 'obligations concerning right management information' under article 12. According to the article, Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the acts specified in the article.

It is also obligatory for contracting parties to undertake or to adopt, pursuant to their legal systems, the measures necessary to ensure the application of this treaty.

UPDATE AND TRENDS

Key developments of the past year

Are there any emerging trends or hot topics in copyright regulation in your jurisdiction? Has there been any new copyright legislation passed or proposed within the last 12 months?

The latest updates and hot topics in Turkey regarding copyright regulation are as follows:

  • The Constitutional Court annulled article 81/13 of the Law on Intellectual and Artistic Works numbered 5846 on the basis that the article is contrary to aggregation rules. The article prescribed remission for offenders who violated material rights along with a failure to comply with banderol obligations, while offenders who only failed  to comply with banderol obligations could not benefit from this remission.
  • The Amendment to the Law on the Regulation of Publications on The Internet and Suppression of Crimes Committed By Means of Such Publications published on 31 July 2020 held social networks providers liable for   the damages caused by unlawful content provided that a court decision ratifies that the content is unlawful. This provision also applies to the online copyright infringements and imposes absolute liability to the social media platforms in cases of an infringement.
  • Screenwriters and other authors engaging with cinematographic works requesting an amendment to the Law on Intellectual and Artistic Works covering their right to exploit the re-broadcast of their work on any kind of platform, after the transfer of their material rights.

LAW STATED DATE

Correct on

Give the date on which the information above is accurate.

7 October 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.