Significan­t changes made in copyright law

Dünya Executive - - BUSINESS BY LAW - MINE GUNER, HEAD OF INTELLECTU­AL PROPERTY ESIN ATTORNEY PARTNERSHI­P [email protected]

The draft law amending Law No. 5846 on the Protection of Intellectu­al and Artistic Works was published for opinion on May 5, 2017. The amendment brings significan­t changes to the laws governing copyright infringeme­nts on the internet, the right of communicat­ion to the public and improvemen­ts to the rights of collecting societies.

Major amendments

A key provision of the new draft law is the expanded scope of the right of communicat­ion to the public, which is one of the most infringed rights, in response to rapidly evolving modern communicat­ions technology. The amendment provides the author with the exclusive right to authorize or prohibit any communicat­ion to the public of his or her work in a broader manner and intends to harmonize Turkish regulation­s with Directive 2001/29/EC of the European Parliament. Article 25 of the existing law was limited to communicat­ion by means of signs and devices enabling aural and visual transmissi­on, whereas the amendment refers to communicat­ion to the public by any means.

Another amendment also permits the resale and distributi­on of computer programs and databases after their first sale with the permission of the right holder. The provision is in parallel with the recent decisions by Turkish courts that found the resale of computer programs and software was not found to be a copyright infringeme­nt.

Internet infringeme­nts

Pursuant to the new Article 77/B of the Copyrights Law, a rights holder whose rights have been infringed upon the internet may either send a notice to the relevant content or host provider for the removal of infringing content or directly request from the public prosecutor an order to block access to that content. If the rights holder prefers the notice option, the content or host provider is required to comply within 24 hours.

Although the new Article 77/B refers to Law No. 5651 on the Regulation of Internet Publishing and Prevention of Crimes Committed through the Internet, it provides a slightly different regime by introducin­g the additional notice option. However, whether the notice option will be frequently exercised in practice remains to be seen once the new amended law is adopted.

Collecting societies may also request that the public prosecutor take the necessary steps against infringeme­nts on the internet, upon which the Public Prosecutor may order the access to the offending content to be slowed. The draft law, however, is silent on how this will be done but this will become clearer once the amendments take effect.

Collective rights management and common licensing unions

The draft amendment law mandates the right to have a reasonable sum or share for the communicat­ion and resale of artistic works to be only exercised by collecting societies. If there is more than one collecting society in the relevant sector, the amended law indicates that common licensing unions authorized by the Culture and Tourism Ministry will manage authors’ rights. Such an obligation may be criticized, as the existing copyright law states that no person can be forced to be a collecting society member, while this provision requires member- ship in a collecting society to receive financial income.

The income of the right holders who are not represente­d by any collecting society will be kept for five years in an account opened by the common licensing union. The sum will be distribute­d among the collection societies based on their representa­tive capabiliti­es unless the rights holders claim them. Unclaimed sums will be used to strengthen the intellectu­al property system.

The draft law also intends to create common licensing unions to resolve problems stemming from the large number of collecting societies in Turkey. Users who need licenses will deal with a single entity.

Outlook

Copyright protection across the world has become more difficult due to technologi­cal developmen­ts such as the growth of e-commerce, digitaliza­tion and social media. The main objective of the draft amendment law is the harmonizat­ion of Turkish copyright law with these developmen­ts and to strengthen enforcemen­t tools to ensure the protection of copyright owners.

The amendment models itself on current European Union legislatio­n and other internatio­nal standards. While the amendments mostly achieve a general harmonizat­ion and modernizat­ion, we can expect major changes and debates on the law, especially concerning potential implementa­tion issues.

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