What can content creators do to protect themselves?
Copyright protection is mainly regulated under Turkish Intellectual and Artistic Works Law No. 5846 (referred to as Law No. 5846 hereafter). As to the Turkish Copyright Law, protection shall start with the creation and publication of the work to the public which meets the conditions under the Law No. 5846. Therefore neither registration of the copyright owned work with any competent authority nor confirmation of the same is necessary to enjoy copyright protection.
Even though registration of the work is not required for the protection, it is still crucial to prove being the first creator of the copyrighted work in case of a dispute.
For the ease of prove there are several ways should be considered by the creators following their creation of the work. For instance, content creators can use “timestamps” which can be obtained via online third party service providers to identify exact time of the creation. Approval of the exact time of the creation and the details of the creator by a Notary Public and/or issuance of minutes by the Notary Public on the same can be another option for the creators. Lastly, creators may also apply for the registration of their copyright with the Directorate General for Copyright which is the competent unit of the Ministry of Culture and Tourism. However it should be bear in mind that this registration is simply a kind of copyright recordation, nothing more nothing less, since the application is not examined by the authority through checking whether the applicant has the genuine right ownership on the work, rather it is merely a control of the procedural and the documental requirements. Registration with the Directorate, therefore, should not be deemed as final evidence on copyright ownership.
What kinds of content are under protection of the copyright law, as creators tend to mix their content with parts of other copyrighted materials such as a song or a film?
Pursuant to Law No. 5846, original pieces of work, which bear the characteristics and originality of the author, are protected if they fall under the scope of the specified categories. Categories of the works which are capable of protection in Law No. 5846 are:
- “works of science and literature”
- “works of music”
- “works of fine art”
- “works of cinema”
Each category of work has sub-categories under the Law No.5846. Literary and Scientific Works cover the works that are expressed by language and writing in any form, and computer programs expressed in any form together with their preparatory designs, provided that the same leads to a computer program at the next stage; all kinds of dances, written choreographic works, pandomime and similar theatrical works without dialogue; all kinds of technical and scientific photographic works, all kinds of maps, plans, projects, sketches, drawings, geographical or topographical models and similar works, all kinds of architectural and urban designs and projects, architectural models, industrial, environmental and theatrical designs and projects, lacking in aesthetic quality.
Musical Works include all types of musical compositions, with or without lyrics as sub-category.
Works of Fine Arts are defined as oil paintings or water colours, all types of drawings, patterns, pastels, engravings, artistic scripts and gildings, works drawn or fixed on metal, stone, wood or other material by engraving, carving, ornamental inlay or similar methods, calligraphy, silk screen printing; sculptures, reliefs and carvings; architectural works; handicraft and minor works of art, miniatures and works of ornamentation, textiles, fashion designs; photographic works and slides; graphic works; cartoons; all kinds of personifications. It should be noted that all the mentioned works should have aesthetic value to be protected as works of fine art.
Cinematographic Works are works such as films of an artistic, scientific, educational or technical nature or films recording daily events or movies that consist of a series of related moving images with or without sound and which, regardless of the material in which they are fixed, can be shown by the use of electronic or mechanical or similar devices.
These categories are numerous clausus however sub-categories under each category of work can be expanded by way of legal interpretation depending on the conditions of each individual case and nature of the creative work.
It should be noted that each work that can be defined within the below classifications would be capable of protection separately. In a case where creators mix their content with parts of other copyrighted materials, generated work would also be protected itself if it bears the characteristics and originality of the author and can be defined within the above mentioned categories. For instance, in the case of cinematographic works, the director, the composer of original music, the scriptwriter and the dialogue writer are joint authors of the work. Additionally, the Law No.5846 provides neighbouring rights to the performers and/or phonogram producers if only the moral and economic rights of the author are not prejudiced.
Intellectual and artistic products created by benefiting from another work but that are not independent of such work are adaptations and they can also be considered as works under the Law No.5846 if they bear the characteristic of the person making the adaptation, which are created without prejudice to the rights of the author of the original work such as converting musical works, literary and scientific works or works of fine arts into films, or converting them into a form which is suitable for filming or for broadcasting by radio and television.
Are the existing laws sufficient to protect copyright stakeholders?
The Law No. 5846, which is the current basic legislation for copyright registration, has been enacted on January 1, 1952. There have been several amendments on the Law No. 5846 since the year of enactment.
Basic principal of the Law No. 5846 is to protect the authors and it embraces provisions to protect their rights firmly. Hence it should be concluded that the Law No. 5846 is satisfactory in the context of the protection of author’s right.
Indeed according to the Law No. 5846, copyright holders can seek for several remedies both in civil and criminal proceedings in case of the infringement of their material and/or moral rights on the copyrighted work. Preliminary injunctions, prevention of manufacturing, sale, and importation of the infringing products in civil proceedings, removal and destruction of infringing materials, claim for material and moral damages, publication of the court's verdict are such remedies in civil proceedings. Especially possibility of the copyright holder to claim the payment of compensation up to three times of the amount that could have been demanded if the right had been granted by contract, or up to three times of the current value which shall be determined under the provisions of the Law No.5846 in case of infringement of its economic rights as to the Article 63, is a significant protection that Turkish Copyright Law offers among many other copyright systems.
Moreover, Article 71 of the Law No. 5846 rules the criminal liability for the infringement of copyrights. Exploiting the economic rights on a copyrighted work without the permission of the owner, making an adaptation without any reference to the original work and renaming a work without referring the actual owner, using another person’s name who is known by public on the work, performance, phonogram etc., disclosing a work to public without the permission of the owner are some of the acts which should be penalized. Sanctions are generally imprisonments (up to 5 years by vary depending on the criminal act and the form of occurrence of the offence) and judicial fines.
On the other hand the Law No. 5846 could be criticized since it does not succeed in complying with the technological developments adequately. EU regulations are evolving by the need of modern copyright rules which will fit for the digital age. The latest directives of the Union “The Directive on Copyright in the Digital Single Market” and “The Directive on Television and Radio Programmes” are crucial initiatives to enable the legislation address the needs of both content owners and the public in a digitalized world. There is no doubt that Turkish Copyright Law should keep a close eye on these developments and integrate the required ones with its own system if required by tailoring them according to the domestic needs, legal and social infrastructures.
Nowadays, whether and how to fairly protect Artificial Intelligence generated contents and even the Artificial Intelligence itself in the means of copyrights is a highly debated issue still remains unclear in Turkish Copyright system just as in any others all around the world. As it has been known, draft bill is being prepared to amend the Artistic Works Law by the Turkish Ministry of Culture and Tourism and hopefully will cover the provisions comply with the digitalized world together with the AI and AI generated contents.
If all desired laws were in place, could enforcement keep up with them?
Turkey has established specialized IP courts which are in Istanbul, Ankara, and Izmir provinces back in 2005. The copyrights are enforced before these Courts if the dispute falls within the jurisdiction of these Courts. Having IP Courts which are expected to be specialized generally in IP rights and specifically in copyrights is clearly a positive factor for Turkish enforcement system.
However, there have recently been substantially decreases in the number of the IP Courts. In addition to closing some of the IP Courts, unfortunately judges who are currently being appointed to the remaining courts do not really specialize in intellectual property which is problematic in terms of effective enforcement of IP rights. Also, intellectual property proceedings in Turkey rely heavily depends on expert witnesses. Although these experts are not always as qualified within their field, their opinions are given great effect and discretion. Restructure of the courts, frequent change of the judges and the inappropriate expert reports causes excessively long judicial proceedings.
In addition to that, “Mandatory Mediation” for commercial disputes entered into force as of 1 January, 2019 in Turkey that applies in copyright law for the cases where the copyright owner seeks for compensation due to the infringement. According to this recent practice, such cases cannot be brought before the competent IP court unless the mandatory mediation process is completed and a final report is issued by the mediator. This practice may either extend the time of the judicial proceedings if it fails to amicably solve the issue despite the completion of the mediation process or oppositely may work as a practical tool to facilitate the parties to find a middle ground by avoiding the court proceedings.
First published by Asia IP Volume 12 Issue 02, in 11.03.2020