Copyrights are amongst the most infringed-upon rights in the internet environment. On this account, Turkey applies a notice and takedown system in online copyright infringement cases as a practical tool, which is also widely recognized in many jurisdictions around the globe.
In Turkey, copyrights are protected under Law on Literary and Artistic Works No. 5846 (“Law No. 5846”). According to Law No. 5846, if a work is adapted, duplicated and circulated, performed or broadcast through devices that provide transmission of all kinds of images, sounds or signs, without its owner’s permission, this means that the copyright is infringed.
For online copyright infringement, Additional Article 4 of Law No. 5846 introduces the basic “notice and takedown procedure.” This provision provides that the copyright owner first send a notice to the content provider that supplies the relevant material for use on websites, and requests the removal of the infringing content within three days. If the content provider does not obey the request within a three-day window, and the violation continues, a request must then be addressed to the Public Prosecutor asking that the service being provided to the content provider be removed within three days by the relevant internet service provider which establishes access to internet. Once the infringing acts are ceased, access is provided to the content provider once again. It should be noted that the notice and takedown procedure does not prevent the copyright owners from exercising their rights to pecuniary and non-pecuniary damages.
In parallel with this provision, Law No. 5651 on the Battle Against Crimes Committed Through the Internet and to Regulate Internet Media (“Law No. 5651”) sets out the general principles as to the liability of content providers, service providers, and public use providers, who must remove the content of the website if they are informed of the infringing content. On the other hand, there are divergent views as to whether the principles set out in Law No. 5651 may also be applied to copyright infringement (or other types of intellectual property rights) considering that Law No. 5651 is applied for a specific list of crimes and, thus far, there is not much case law providing guidance in this regard. However, in practice, the copyright owners have recourse through this provision, as well, especially if the infringing activity violates their personal rights to broadly benefit from the protection provided under Turkish Law. As a matter of fact, some High Court decisions have been rendered where Law Nos. 5846 and 5651 are interpreted, together.
Additionally, Draft Bill to Amend Law No. 5846 (the “Draft Bill”) was published online on May 05, 2017 for public comment. The Draft Bill abolishes the Additional Article 4 of Law No. 5846, and envisages a new Article 77/B, with regard to digital infringement by content providers. It is planned with the referred Article 77/B to harmonize the notice and takedown procedures provided under Law No. 5651 and Additional Article 4 of Law No. 5846. Besides, under Article 77/B, sending a notice to the infringing party for the removal of the infringing content is no longer a requirement, and the copyright owner may directly file its request for takedown with the Public Prosecutor. The rationale of this optional notice procedure is actually to expedite the proceedings, and to minimize the damages of the copyright owner. On the other hand, it is thought that this provision will create discussions, in practice, on the part of the relevant public, since the procedures under Article 77/B are rather, once again, different from Law No. 5651, while the major goal is to harmonize the notice and takedown procedures.
Finally, it is worth questioning whether the European Union’s Directive on Copyrights in the Digital Single Market 2016/0280/COD (the “Copyright Directive”), intended to accommodate the digital age, will have an impact on Turkish Copyright Law in terms of the “notice and takedown” procedure. While the Draft Bill is still undergoing changes, and there is no indication that it will enter into force soon, a similar provision to Article 17 (former Article 13) of the Copyright Directive might come to the force during parliamentary discussions, in Turkey, and in the accession talks with the European Union. With the introduction of Article 17, it is criticized by many as it is found to be incompatible with the right to privacy, and encourages self-censorship, the European Union takes a further step in securing copyrights by requiring online content sharing service providers to obtain authorization from the right-holders, such as through a licensing agreement. This is interpreted as a change in the “notice and takedown” procedure, where the copyright owner actively takes part in the process. Article 17 implicitly “obliges” the online content sharing service providers to automatically check the infringing content in order to protect copyright owners, without having to send a takedown notice.