Copyright is the legally recognised rights on the products created by the labour of a person. In Turkey, copyrights are protected under the Law No. 5846 on Intellectual and Artistic Works (“FSEK”). The protection is enjoyed without the need for registration upon the creation of the work, but the condition for this is that it is among the types of works listed in FSEK. These types of works are listed under six main headings; works of science and literature, musical works, fine art works, cinematographic works,compositions and compilations, publicised and published works.
Today, with the increase in the use of the internet, the use of the types of works listed in FSEK on digital platforms has resulted in an increase in copyright infringements. It is necessary to create a delicate balance between the right of individuals to obtain information and the protection provided by intellectual property rights to the author. As a result of the fact that information can be accessed at less cost and in much shorter periods of time on digital platforms, the need to develop some mechanisms for the control of the content shared on the internet has come to the fore.
First of all, it should be evaluated what violations may be committed on the internet. In this context, copyright infringements may appear in different ways. The most common types of infringements are infringements of images, sounds, writings, computer programmes, cinema works and scientific works. In this context, copyright infringement will come to the fore in cases of use, reproduction and transmission of the works in question without the permission of the author, and sanctions will be imposed to prevent unauthorised use and violations arising from unauthorised use.
The World Intellectual Property Organisation (“WIPO”), of which Turkey is a member, aims to support the establishment of international rules and principles for the development of intellectual property protection, to ensure the implementation of conventions, to fulfil registration requests regarding copyright, to provide legal assistance on copyright and to resolve disputes that may arise. The conventions to which Turkey is a party include the Berne Convention, the Rome Convention, TRIPs, the WIPO Treaty on Performances and Phonograms, and the WIPO Copyright Treaty. The main purpose of these conventions is to protect the rights of authors on their works and to establish international rules to prevent such violations. Although WIPO does not currently have a protection mechanism in order to protect copyright in the Internet environment, it has opinions and evaluations on the protection of copyright on digital platforms. In particular, recommendations are shared on the necessity of new regulations regarding the protection of copyright of authors on digital platforms.
In addition to international regulations, there are also digital systems for the protection of copyright. One of these protection systems is called “Digital Rights Management Systems” and is used to prevent unauthorised use. For example, the computer on which a scientific article published on the internet is used, the period of use, and the operations made on the document can be easily detected with the system in question. This determination also allows access to information on which computers the copyright is used, reproduced and shared. Today, this system is also used by large companies such as Amazon, Apple, Google, BBC, Microsoft. The biggest criticism of this system, which prevents violations especially within the scope of combating piracy, is that people with high level computer usage knowledge can overcome the protection provided by the system. Although the rights of the author will be protected in such a way that they will not be infringed if the system in question is developed, it is not yet fully protected.
Another protection mechanism is the notification opportunity provided by digital platforms to their users . In this way, users can make a request for the removal of the content in which the unfair use of copyright is made and request an access block to the post in question. Today, social media platforms such as Facebook, Twitter and Instagram, which have the highest number of users, use this system and make it possible to obtain faster results in case of copyright infringement by users. After the notification, if the relevant digital platform determines that this content violates copyright, the unfair use of the work can be terminated and access to the content in question can be blocked.
In Turkey, the regulation on protection against copyright infringement on the internet is included in the Law on Copyright Law. The protection mechanism in the American Digital Age Copyright Law has been adapted to Turkish Law and adopted as the “Warn-Remove” system. The regulation in Annex-4 of FSEK is as follows:
“In the event that the rights of authors and related right holders recognised in this Law are infringed by service and information content providers through means of signal, sound and/or image transmission, including digital transmission, the works subject to infringement shall be removed from the content upon the application of the right holders. For this purpose, the real or legal person whose rights have been infringed shall firstly apply to the information content provider and request the cessation of the infringement within three days. If the infringement continues, this time, upon the application made to the public prosecutor, the service provider is requested to stop the service provided to the information content provider who continues the infringement within three days. If the infringement is stopped, the information content provider shall be re-served. Service providers shall notify the Ministry of the list showing the names of information content providers on the first working day of each month. Service providers and information content providers are obliged to provide all kinds of information and documents if requested by the Ministry. The procedures and principles regarding the implementation of the matters specified in this article shall be determined by a regulation to be issued by the Ministry.”
To explain the Warning-Remove system with an example; after the owner of the work determines that a sound performance belonging to the author is used on a digital platform without authorisation, a warning is given to the service provider where the unfair use is carried out, and it is requested to stop the violation within three days. If the service provider does not cease the infringement within three days, an application shall be made to the Chief Public Prosecutor’s Office and it shall be requested to stop the service provided to the service provider that continues the infringement. With the suspension of the service, the violation is terminated by blocking access to the content subject to unauthorised use. If the violation is stopped, the service is provided to the content provider again. The sanctions for such unauthorised uses are regulated in Article 72 of FSEK. In accordance with the unauthorised use by a person who is not the right holder of the work, the person is sentenced to imprisonment from six months to two years.
Although the Warning-Removal system is an application to protect the rights of the author, the criticism of this protection system is the issue of determining whether there is a reason for “compliance with the law”. In the American Digital Age Copyright Law, it is stated that uses within the limits of fair use are not considered as infringement of copyright. Accordingly, the boundaries of fair use should be drawn and the issues that are not considered copyright infringement should be regulated in the law. However, while the Uyar-Kaldır system deals with a criminal sanction for the infringement of copyright, it does not protect and compensate the material and moral rights of the author arising from the work.
Conclusion
Due to the increase in the use of the Internet and the fact that digital platforms occupy a large place in our daily lives, it is necessary to create a balance between the rights of the author and the right of the person to obtain information regarding the violations that occur consciously or unconsciously. At this point, in cases where digital protection mechanisms are insufficient, legal regulations should be made to regulate the infringement in detail and the limits of fair use should be drawn. Considering that the boundaries of digital platforms will expand further in the coming years, the regulations in the Law on Intellectual and Artistic Works should be updated in line with the needs.
Bibliography:
– Law No. 5846 on Intellectual and Artistic Works
– Protection of Intellectual Rights on the Internet – Assoc.Dr Veysel Başpınar , Av.Doğan Kocabey
– Law Applicable to the Protection of Intellectual Property Rights on the Internet , Assoc. Prof. Dr. Yavuz Kaplan
– Intellectual Property and Data Protection in the European Union and Turkey – Özlem Oğuz
– Intellectual Property Law – Prof. Dr. Rauf Karasu, Assist. Assoc. Dr. Cahit Suluk, Dr. Temel Nal
– WIPO– Copyright Treaty, TRIPs, Berne Convention, Rome Convention
