Copyright Litigation in Turkey
Sources of law
1. What are the principal sources of law and regulation relating to copyright and copyright litigation?
Copyright protection is regulated under the Intellectual and Artistic Works Law No 5846 (Artistic Works Law).
2. In which courts is copyright enforced?
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 (typically the third civil court if there are more than three courts and the first civil court if not) is assigned as a specialised IP court and copyright must be enforced in them.
The applicable jurisdiction can be any of the following:
- The regular domicile of the copyright holder.
- The place where the infringement was committed.
- The place where the act of infringement produced consequences.
3. Who can represent parties before the court?
Parties can only be represented by attorneys. The rights owners can also represent themselves without an attorney.
4. What is the language of the proceedings? Is there a choice of language?
The language of the proceedings is Turkish. There is no choice of language in court proceedings.
5. To what extent are courts willing to consider, or are bound by, the decisions or opinions of other national or foreign courts, or other national or international bodies, that have handed down decisions in similar cases?
Turkey has a civil law system in which case law is not a major source of jurisprudence. Courts do not follow the doctrine of stare decisis, (that is, they are not bound by decisions from other national courts or authorities). However, in practice, court decisions tend to be consistent with prior higher court decisions. The major exception is that decisions of the General Assembly of the Court of Appeals are binding.
Courts are not bound by the decisions or opinions of foreign courts or other international bodies. Given the territorial nature of copyright, courts usually assess the existence of copyright on the basis of Turkish law. However, they do not take a rigid approach against foreign decisions and usually consider them to the extent that the principles followed by foreign courts or bodies do not clash with Turkish law.
6. What types of works can be protected by copyright?
The following are protected by copyright
- Original works that bear the characteristics and originality of the author.
- Works capable of being classified as:
- science and literature;
- fine art; or
These categories are closed, however the Artistic Works Law also lists many sub-categories and these can be expanded by legal interpretation depending on the conditions of each individual case and the nature of the creative work.
For example, computer software does not fall within any of the four main categories but the Artistic Works Law also lists it as a sub-category under “scientific and literary works”. Likewise, a database that is based on the selection and adaptation of materials for a specific purpose and in line with a special plan is recognised as “work” within the category of “adaptations and compilations” and enjoys sui generis protection.
Copyright protection arises irrespective of the nationality of the creator.
7. What are the main acts that constitute primary and secondary infringement of copyright?
Turkish copyright law does not distinguish between primary and secondary infringement, but treats them as a single concept of copyright infringement.
The following acts constitute copyright infringement:
- Unauthorised reproduction, distribution, or communication of the work.
- Unauthorised adaptation of the work (that is, unauthorised derivative works).
- Infringement of the author’s moral rights including:
- disclosing the work to the public;
- modifying the work/breaching the integrity of the work; or
- breaching the author’s right to attribution of the work.
8. Does your jurisdiction provide authors with moral rights?
Moral rights are defined separately from economic rights and include the right to:
- Disclose the work.
- Attribution of the work.
- Protect the integrity of the work.
9. What defences are available to an alleged infringer?
Defences are defined under the title “fair use” and include the following:
- Public order. The reproduction and publication of officially published texts as well as official speeches given in assemblies, congress, courts or public meetings is allowed for the purpose of public information and declaration (Article 30, Artistic Works Law).
- Public interest. This includes use of a work for informational, educational and scientific/cultural purposes.
- Private (personal) use. This falls into personal use, copy and display and use of the work in public places. Intellectual and artistic works can be used for private purposes provided that there is no commercial expectation of profit. There are some specific rules that cover computer programs stating that where there are no contractual provisions to the contrary, a person who has legally acquired a licence for a computer program can duplicate it if it is necessary for its intended purpose and efficient use. Downloading, running or correcting the computer program by the person who has legally acquired the work cannot be prohibited in any contract and the person who is entitled to use the computer program can also make a back-up copy.
- Freedom of quotation. The law allows references to written and musical works that have been made public provided that they include the proper citation.
- Public domain. When a work’s copyright expires and it subsequently enters the public domain, it can be used by the public without permission.
10. Is there a requirement for copyright registration?
There is no registration requirement to acquire copyright over a work and registration is not a pre-requisite for enforcement of copyright. Copyright arises automatically on creation of the work.
There is a compulsory registration requirement for cinematographic and musical works for commercial exploitation purposes. It is possible to register other types of works but this is optional. Registration can be helpful as it creates a presumption with respect to the date of creation.
The authority in charge of recording and registering copyright is the General Directorate of Cinema and Copyrights, which operates under the Ministry of Culture and Tourism. The rules on recording, registering and paying fees are set out in Regulation No 26171 on the Recording and Registration of Intellectual and Artistic Works.
Displaying a copyright notice is not required.
Consequences for failing to register copyright or to display a copyright notice
Copyright registration is not mandatory and is not a pre-requisite for copyright protection. Therefore there are no consequences in terms of protection of an author’s rights for failing to register copyright or for not displaying a copyright notice.
However for cinematographic and musical works that are subject to compulsory registration (for commercial exploitation purposes), failing to register the copyright prevents the commercial exploitation of these works on the market since without the registration it is not possible to obtain the necessary permissions (such as to use labels on CDs or other carrier materials).
11. How long does copyright protection last for the principal types of copyright work?
The protection term begins when the work becomes public without the necessity for notification or registration. The duration of protection subsists for the life of the author, plus 70 years following the death of the author. The 70-year period starts from 1 January of the year following the author’s death. If there is collective ownership of a work, the 70-year period begins from the date when the last surviving owner dies.
12. How is copyright infringement assessed?
The main way to assess copyright infringement is for the claimant to prove actual copying or unauthorised use of the work.
Plagiarism is accepted when there is a substantial similarity between the underlying original themes used in two works.
13. On what grounds can copyright in a work be declared invalid or unenforceable?
Copyright can be declared invalid if:
- The work was not original in the first place.
- The author was not the genuine author of the work in which copyright is claimed.
- The term for protection has expired.
14. What limitation periods apply to copyright infringement actions?
Infringement actions must be commenced within two years from learning about the infringing activity. In any case, the maximum period is ten years from the infringing act. In addition, where the act is also subject to criminal responsibility and if the statutory time limit for criminal responsibility is longer, the longer period will apply.
As long as the infringement is ongoing, the limitation period does not start.
15. To what extent can the enforcement of copyright expose the copyright holder to liability for an anti-trust violation?
A business’ copyright creates a monopoly and provides an advantageous position to the owner. While this does not necessarily mean that owning copyright or exploiting it will be a deterrent to free competition in a given market, it can have a significant effect on it.
For example, if the copyright is enforced in a way that actually (or potentially) prevents, distorts or restricts competition, this can expose the copyright holder to liability under Law No 4054 on the Protection of Competition.
There has never been a case in Turkey where a copyright holder has been exposed to liability for anti-trust violation while enforcing its copyright.
Parties to litigation
16. Who can sue for copyright infringement?
A copyright holder can sue for copyright infringement.
If there is joint or collective ownership, unless there is an agreement between the parties specifically allowing one of them to initiate a court action, they must act together.
Exclusive licensees can sue for copyright infringement and they can claim an indemnity against infringement of their economic rights.
Non-exclusive licensees can conduct infringement actions only if they are expressly authorised to do so in the licence.
17. Can copyright collecting societies sue for copyright infringement to enforce their members’ rights?
Collective licensing bodies can bring an infringement claim on behalf of one of its members under the bye-law on collective bodies.
18. Under what conditions, if any, can an alleged infringer bring proceedings to obtain a declaratory judgment of non-infringement?
The Artistic Works Law does not contain any specific provisions on declaratory judgments. However, it is possible to bring an action to obtain a negative (for non-infringement) or positive (for determination of validity) declaratory judgment under Article 25 of the Civil Procedural Code (which allows declarations of unlawfulness).
19. Who can be sued for copyright infringement?
Anyone who infringes the copyright of the author can be sued.
An action can also be brought against an employer if the infringement was committed by its representative or an employee of the business during the performance of their service (if it is within the scope of their employment) (Article 66, Artistic Works Law).
20. How is the liability of intermediaries, such as internet service providers treated? Under what conditions can they be liable for copyright infringement? Are there any specific defences available to them?
There is no specific law regulating the liability of intermediaries.
In 2007, Parliament adopted Law No 5651 on the battle against crimes committed through the internet and to regulate internet media. Law No 5651 sets out general principles on the liability of content providers, hosting providers, access providers and public use providers. There are different views on whether the principles set out in the law can also be applied to copyright infringement (or other types of intellectual property rights) and so far there is not much case law providing guidance in this regard.
It is generally accepted that intermediaries will be liable if they are involved in the infringing activities either intentionally or through gross negligence.
21. Is it possible to add or remove parties during litigation?
Under the Civil Procedural Code, it not possible to make any changes to the parties during the proceedings without explicit consent from the opposing party.
However, it is possible to intervene in the proceedings as an auxiliary claimant or defendant. The intervening party is bound by the statements of the claimant/defendant but is allowed to attend all hearings and submit statements to the extent that they are compatible with the former statements made by the claimant/defendant.
22. What options are open to a copyright holder when seeking to enforce its rights in your jurisdiction?
In civil proceedings, the following remedies can be sought:
- Preliminary injunctions (such as for seizure of products).
- Prevention of manufacturing, sale and import of the infringing products.
- Removal and destruction of infringing materials.
- Claim for material and moral damages (in cases of intentional infringement). Material damages affect the actual property, while moral damages affect personality rights (for example, reputation).
- Publication of the court’s verdict.
There are provisions on criminal liability for copyright infringement (Article 71, Artistic Works Law). Criminal liability is imposed specifically on those who create, offer, sell or possess for any purpose other than private use software or technical hardware that circumvents protective programs that prevent illegal duplication.
The sanctions for different types of criminal liability include the following:
- Any person who exploits the economic rights of a copyrighted work without permission from the owner can be sentenced to imprisonment from one to five years or be subject to a judicial fine.
- Any person who makes an adaptation without any reference to the original work and any person who renames a work without referring to the actual owner can be sentenced to imprisonment from six months to two years or be subject to a judicial fine. Where renamed work will be put on the market, imprisonment can increase to up to five years.
- If a person uses another person’s name (which is known to the public) on the work, performance, phonogram and so on, they can be sentenced to imprisonment from three months to one year or be subject to a judicial fine.
- Any person who discloses a work to the public without permission from the owner can be sentenced to imprisonment for up to six months.
In addition, there are other criminal liabilities for people who distort a work.
Customs Law No 4458 entitles the intellectual property owners to register their rights with customs, enabling the right owners to detain counterfeit or infringing goods at the border.
Once the rights owner registers their rights with customs, it detains suspected counterfeit goods and grants a temporary suspension decision for ten working days (three days for perishable goods) which can be extended for an additional ten working days. During this period the rights owner must obtain an interim injunction or the detained/seized products will be released.
Border measures are mostly used against counterfeit products and not for copyright infringements.
23. Is interim relief available for the rapid removal of infringing content from the internet?
There is a specific process for copyright infringements in a digital environment (Additional Article 4, Artistic Works Law).
Under the additional article, a copyright owner must first contact the content provider and request that the violation be ceased within three days. If the violation continues, a request must then be made to the Public Prosecutor requiring that the service being provided to the content provider persisting in the violation be suspended within three days by the relevant service provider.
24. Is it advisable to send a letter before action (cease and desist letter) to an alleged infringer before commencing copyright infringement proceedings?
Sending a letter before action depends on the alleged infringer.
If it is considered that the alleged infringer is not acting in bad faith or if the alleged infringer is a trustworthy entity, it is advisable to send a cease and desist letter because there is a chance that the dispute will be resolved quickly without commencing court proceedings.
However, if the alleged infringer is a persistent infringer clearly acting in bad faith, then sending a cease and desist letter is not likely to be helpful.
25. To what extent are your national courts able to grant cross-border or extra-territorial injunctions (preliminary or permanent)?
Turkish courts cannot grant cross-border or extra-territorial injunctions. However, they can decide on blocking orders to prevent access to an internet site containing infringing materials based in Turkey.
26. To what extent are arbitration, and alternative dispute resolution (ADR) methods (such as mediation), available to resolve copyright disputes?
If the parties agree in writing, they can use arbitration to resolve their dispute. In addition, under the Turkish Mediation Act on Civil Disputes dated 22 June 2012, the parties can also use mediation to resolve copyright disputes. However neither arbitration nor mediation are commonly used for copyright disputes.
Procedure in civil courts
27. What is the format of copyright infringement proceedings?
After a case is filed, the court will follow the procedures laid down in the Civil Procedural Code.
As a first step, the court reviews the procedural requirements, including whether or not it has jurisdiction. The court either acknowledges its jurisdiction on the matter, or else will declare that it does not have jurisdiction and the action must then be filed before a different court.
Once the procedural requirements are checked, the parties submit two petitions each containing their submissions and arguments about the dispute. The responding party is always allowed a peremptory term of two weeks to file their submissions unless an extension is granted by the court. Consequently these two rounds of petition exchange take at least two months, excluding the time the petitions spend in the post (official notification process).
A preliminary examination hearing is scheduled where the judge determines the heart of the dispute and reminds the parties of the out-of-court alternatives such as mediation or ADR. After this hearing, no new evidence or lines of argument can be submitted. The preliminary examination hearing usually takes place between three and six months after the action is filed.
After the preliminary examination hearing, the discovery stage begins and during this period the court can hold a witness cross-examination hearing if there are any due to be heard. The court can also decide to use an expert opinion and appoint an expert panel, which typically takes another three to six months to organise and consult. The parties usually file submissions refuting the expert opinions, so a case can spend between 12 and 18 months with the first instance court.
The first instance judgment can be appealed to district courts, whose decision is then subject to a second appeal to the Courts of Cassation. The process before the district courts takes around six months and the process before the Court of Cassation takes around 12 to 18 months.
28. What are the rules and practice concerning evidence in copyright infringement proceedings in your jurisdiction?
Written documents are considered to be the strongest form of evidence and must be submitted to the court before the preliminary examination hearing.
Witnesses are questioned by both parties. The judge can also formulate questions for witnesses. Witness evidence is the least used type of evidence in intellectual property disputes.
Expert evidence is the most important and reliable evidence. The court typically appoints the official experts and they are asked to prepare a comprehensive report by reviewing the claims and replies and all the evidence existing in the file. If the court is not satisfied with the report, it can request an additional report from the same expert(s) or from different experts. Other than these official experts, the parties are also allowed to work with their own private experts and submit their reports as evidence. In most proceedings, the court appoints an expert panel and asks for an opinion on the areas of conflict. The parties can ask for expert evidence up to the preliminary examination hearing but the court can also appoint an expert panel of its own accord.
29. To what extent is survey evidence used?
Survey evidence is traditionally used in hearings under trade mark law. It is not commonly used in copyright litigation.
30. Is evidence obtained for criminal proceedings admissible in civil proceedings, and vice versa?
Evidence obtained in a criminal proceeding can be used and is admissible in a civil proceeding and vice versa.
31. Is evidence obtained in civil proceedings admissible in other civil proceedings?
Evidence obtained in a civil proceeding can be used and is admissible in other civil proceedings.
32. To what extent is pre-trial discovery permitted and what other mechanisms are available for obtaining evidence from an adverse party or third parties?
Under the Civil Procedural Code, before filing an infringement action, the claimant can apply to the court for an order securing evidence. The application must explain the claimant’s earlier rights and the material facts to be determined, usually in the absence of the counterparty. Subsequently, the court appoints an expert to examine the evidence and prepare a report. The expert must not examine the dispute on its merits but prepare the report only on their assessment of the evidence provided. This procedure can secure any kind of evidence, including printed materials, websites and domain name details.
Another way of securing evidence is for the plaintiff to conduct a notarised purchase. To do this, the party demanding the evidence first applies to a notary, who goes to the other party’s address and purchases or collects the evidence sought. Following the purchase, the notary prepares a statement confirming that they witnessed the collection of evidence.
33. What level of proof is required for establishing infringement?
The plaintiff must provide the court with strong proof of copyright ownership and infringing acts.
34. How long do copyright infringement proceedings typically last?
A straightforward proceeding before civil courts typically takes around one and a half to two years.
Proceedings before criminal courts typically take around a year.
If the claimant’s file is well-prepared with all relevant arguments and evidence, this will expedite the proceedings. However the most common reason for delay in the proceedings is the expert’s report. If this is submitted within a short period, the proceedings can be conducted more quickly.
The most common tactics employed by defendants trying to delay proceedings are:
- Objecting to the court’s jurisdiction.
- Requesting documents from public authorities or from third parties.
- Witness statements.
- Objecting to the experts appointed by the court.
- Submitting excuses for not attending the pre-scheduled hearings and asking for the hearing to be adjourned.
The court has full discretion whether to accept or reject these requests.
The parties can ask the court to stay the proceedings if they are negotiating a settlement. In addition, the court can also decide to stay the proceedings if a related decision before another court is pending.
Counteracting delay to proceedings
The claimant can object to the counterparty’s delaying tactics but the court has full discretion on the matter.
35. Is preliminary relief available, and if so what measures are available and under what conditions?
Preliminary relief is available under the general principles of the Civil Procedural Code. The Artistic Works Law also contains some specific provisions. The court can, at the request of the person whose rights are infringed, order a preliminary injunction ordering the other party to do or not to do something before or after filing the lawsuit (Artistic Works Law).
The conditions that the court will take into account include:
- Urgency (imminent threat). The specific circumstances must prove that failure to prevent infringement will lead to damages that are difficult (or impossible) to remedy.
- Proof of likely infringement. For preliminary relief, complete proof is not required, approximate proof is sufficient. The issues do not need to be proven exactly but demonstrated to be highly possible. As a rule, where the evidence of a person filing a preliminary injunction request is serious and convincing, the courts typically grant the injunction.
A reasonable deposit in terms of cash, bank guarantee letters or government bonds is required to secure the rights of the defendant and third parties whose rights and positions may be prejudiced by the preliminary injunction.
36. Can a protective writ be filed at the court at which an ex parte application may be filed against that defendant?
Protective writs are not available in Turkey.
However it may be possible for a defendant to ask the court to lift the injunction decision or to suspend the immediate enforcement of an injunction by depositing a security bond.
37. What is the format for preliminary injunction proceedings?
Preliminary injunction claims can either be filed separately before the substantive action or within the substantive civil action.
It is possible to file the application ex parte but the court is not bound by this request and can notify the defendant. The court can even hold a hearing and listen to the parties before making a decision on the application. It is also usual practice that the court requires an expert opinion with respect to the technical aspects of the dispute.
The claimant must prove that:
- It is the rights holder.
- Its rights are being infringed or there is a high likelihood of infringement.
- It may suffer irreparable harm or damages.
The validity of the copyright will be assessed by the court.
Length of proceedings
Once the application is filed, it can take from a couple of weeks to a couple of months to obtain a decision depending on the court’s approach to the application, including whether:
- The case is ex parte.
- A hearing is required.
- Experts are appointed.
- The expert’s report is delivered.
38. Where a preliminary injunction is granted, is it necessary to start main proceedings to confirm the preliminary injunction, and if so, what is the deadline?
If the preliminary injunction request was filed before the main proceedings were started and was granted by the court, then the main proceedings must begin within two weeks from the grant of the injunction. If they are not started in this time, the preliminary injunction decision will lapse.
39. What remedies are available in a copyright infringement action?
The rights holder can seek permanent cessation of the infringing acts (including prevention of the manufacturing, sale and distribution).
A copyright owner can request compensation for material and moral damage/prejudice incurred.
Delivery up or destruction of infringing goods
A claimant can request that all infringing products are confiscated and destroyed. It can also request that proprietorship over the products and means are confiscated (in which case the value of the products will be deducted from the amount of compensation awarded).
Publication of the decision
Publication of the decision is available.
A recall order can be granted in the form of preliminary injunction. The court can order the recall of copies of the infringing items that have already been distributed to the market.
Declaration of infringement and validity
Declarations of infringement and validity are available.
40. How are monetary remedies assessed against a copyright infringer?
The owner of the relevant work can claim a maximum of three times the amount of profit that would have been made had there been an agreement between the parties, or the fair market value of the work calculated under the law (Article 68(1) Artistic Works Law).
41. What routes of appeal are available to the unsuccessful party and what conditions apply?
Turkey has a three-level system including:
- First instance court.
- District appeal courts.
- Cassation Court.
After a first instance court renders its reasoned decision, a dissatisfied party can appeal within two weeks to the competent district court. The district court can examine the case on both procedural grounds and the merits. At the parties’ request, the district court can appoint another expert or expert panel to obtain a new report while the court examines the merits of the case. In principle, the district court will examine the appeal during a hearing, except where stated in the Civil Procedure Code.
A district court decision can be further appealed to the Court of Cassation if the conditions of the Civil Procedure Code are fulfilled. The Court of Cassation is the third and final judicial authority in the new three-level system of civil procedure. Since the new system started operating only recently, it is not yet known how it will affect appeal waiting times.
42. What level of cost should a party expect to incur to take a case through to a first instance decision, preliminary injunction proceedings and appeal proceedings?
The cost of attorney’s fees varies enormously depending on the experience and seniority of the lawyer and the law firm. Costs generally vary between EUR15,000 and EUR50,000 or more depending on the complexity of the case.
Court fees are relatively small. Court duty can be around EUR300, while experts’ fees (if appointed) can be around EUR750 to EUR2,000 depending on their qualifications. In actions for damages, court fees are 5.6% of the total amount of the claim.
43. What are the important developing and emerging trends in your country’s copyright law?
A draft bill is being prepared to amend the Artistic Works Law and the Turkish Ministry of Culture and Tourism has recently published it to gather opinions from stakeholders.
The draft bill changes 36 of the Articles contained in the Artistic Works Law, introduces 26 new Articles and cancels two. Some of the major changes include:
- Re-organisation of collecting societies to address the difficulties of effective collective rights management. In Turkey there are currently 27 collecting societies covering several categories (cinematography, fine art, music, radio, television and drama and literature). In each category, the collecting society represents a different author group which complicates the process for clearing the rights for a work because each collecting society must be applied to separately. In 2013, the four major collecting societies in the music industry formed a common licensing unit on their own initiative and this unit facilitated the clearance procedure. The draft bill introduces a compulsory common licensing unit for all collecting societies in each industry.
- A right to equitable remuneration for actors and film authors for the future uses of their films. Film actors are deemed to assign to the film’s producer their rights to broadcast, re-transmit and communicate to the public (unless agreed otherwise in the production agreement between the actor and the producer). Where the rights are assigned to a film producer or any third party, the actor can request “equitable remuneration” from entities that broadcast, re-transmit or communicate to the public any film three years after its first broadcast. This right cannot be transferred or waived and will only be enforced through collecting societies. The draft bill is not clear how these rights will be collectively managed or how the “appropriate payment” will be calculated. Secondary legislation will follow after the enactment of the new law that will provide guidance. The equitable remuneration right will apply to all films that were produced before the effective date of the Artistic Works Law (1995). However, the right to equitable remuneration will arise only if the films are re-used after the enactment of the draft bill.
- Strengthening collecting societies by introducing obligatory collective rights management. In principle, authors will not be able to enforce their rights individually. Collecting societies will enforce the rights of their individual members collectively.
- Introduction of an international exhaustion principle for computer software and databases.
- Stronger measures to combat copyright infringement in digital media. Creating a Centre for Combatting Digital Violations within the Ministry of Tourism and Culture, headed by a public prosecutor. Authors who believe that their rights have been infringed will apply first to this centre and request it to act immediately and effectively.
First published by Practical Law, 22.10.2018