Legal Journal

Material Provisions of Draft Amendment to Law on Intellectual and Artistic Works Considering Technology Field

• Distinction between Database and Computer Program is clarified with the Amendment in Art. 6/11 of Law on Intellectual and Artistic Works.[1]

The current article 6/11 of the Law regulates the protection of databases. Due to the fact that computer program is protected under a separate article, it is clear that database is not a computer program. Accordingly, their legal statuses are clarified with the amendment. The confusing Last sentence of the current article is also removed.

• The Penalty Norm Relating to “Actions Which Aim at Circumventing Technological Measures” is Re-Regulated with the Amendment in Art. 72 of the Law.

Actions which aim to “circumvent” the technological measures and protection methods are applied to computer programs for controlling use of such programs, access control, encrypting, and the mechanisms developed for preventing illegal reproduction are defined as intellectual property crimes. Although this crime is also regulated by the current Law, the incoherent wording is reregulated.

Art. 24 - Art. 72 of the Law is amended as following:

“2. Actions which aim at circumventing technological measures

Article 72- Any  person, 

a)who produces, imports, puts up for sale, sells, rents out products and devices or possesses them for commercial purposes,

b)who provides advertising, marketing, design or implementation services

for circumventing effective technological measures, designed on the purpose of protection of rights under this Law to control using of work, performance, phonogram, production and publication; and which provided by protection methods developed for access control, enciphering, mixing and conversion and therefore control the use or; mechanisms developed to prevent illegal reproduction,

shall be sentenced to imprisonment from six months to two years.”

By means of interpreting the article backwards, it can be stated that computer program developers are permitted to “take technological measures developed for access control, encrypting preventing illegal reproduction for protection of rights”.

Some of these measures used for tracking licenses might require communication between the user’s and right holder company’s computers. Yet it should be noted that this communication should not enable access to user’s private/commercial data.

• Amendment to Art. 38/A of the Law Brings a New Term: “Temporary Reproduction”

It was contradictive whether the reproduction of a work which is temporary or incidental due to technical requirement constitutes violation of a reproduction license. Such discrepancy is eliminated with the amendment in Art.38/A of the Law.

Thus, “temporary reproduction exception” determined by Art. 5 of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in The Information Society will have been directly regulated under the Law.

• New Concept is being established to Prevent Intellectual Property Crime via Internet.

There have been many complaints on inadequacy of legal measures with regards to the copyright infringements on internet environment. In this context, the Draft Amendment on the Law establishes a new concept for protection of author’s rights in case of violation of IP rights.

“In case where rights of rights holders granted by this Law have been violated through internet, upon request of right holders, public prosecutor may decide to block access to the content which is subject to violation until it’s removed.

The decision with regards to blocking access to entire website may be given where it is considered that the violation shall not be ceased by blocking specific internet page, provided that justification is indicated.” according to the proposed Art. 77/B.

In regards to method of enforcement of the aforesaid decisions concerning author’s rights, Law on Regulating Broadcasting in the Internet and Fighting Against Crimes Committed through Internet Broadcasting No. 5651 is attributed with other provisions of the same article. However, Law No.5651 is generally the resource to censorship mechanism. Therefore, in our opinion, regulating this concept under the Law or the Criminal Code instead of referring to the Law No.5651 would be more appropriate.

• The Amendment Introduces New Terms and Definitions in the field of Technology and Copyright.

In addition to the terms such as “Computer Program, Interface and Interoperability” defined under current Art. 1/B of the Law, new definitions such as “Database, Retransmission and Technological Measure” are introduced with the Amendment.

Similarly, digital network (Art.8), digital environment (Art.34/B), digital archive (Art.34/B), network (Art.38/A) and similar new terms are used in the proposed provisions to the Law. These terms are should also be defined in order to lighten the practice.