For the purposes of the Law on Intellectual and Artistic Works No. 5846 (FSEK), a work is a product of intellect and art that reflects the personal characteristics of its creator. For a product to be regarded as a work in the sense of the legislation, it must fall within one of the fields of science and literature, music, fine arts or cinematographic works. Every work falling within the scope of protection confers upon its author various rights of both an economic and a moral nature.
Where these rights are infringed, a single avenue is not the only one open to the author. The rightholder may bring civil actions against the infringer and may equally initiate criminal proceedings by filing a criminal complaint with the public prosecutor’s office. Which acts constitute an offence, and what sanctions are to be applied to those who commit them, are expressly set out in Art. 71 and Art. 72 of the FSEK. In criminal actions arising from infringements of rights in intellectual and artistic works, the court with subject-matter jurisdiction is the Criminal Court for Intellectual and Industrial Property Rights.
The avenues open to an author whose rights have been prejudiced are varied: an action for the removal of the infringement, an action for the prevention of the infringement and an action for the transfer of the profit obtained are foremost among them. Where the conditions required by the legislation are met, pecuniary and non-pecuniary damages may also be claimed. Judicial possibilities are not limited to these, however; it is also possible for the infringer to be tried and sentenced on account of his acts. The details concerning these offences, which are subject to complaint, and the sanctions prescribed for them are examined below.
Rights Granted to the Author
Under the Law on Intellectual and Artistic Works No. 5846 (FSEK), the natural or legal person who creates the work is regarded as the author. Every work falling within the scope of the Law confers certain rights on its author at the very moment it comes into existence. The author’s ability to assert rights in the work is therefore not conditional upon any act of registration.
For a detailed assessment of the subject, our note entitled “The Author’s Rights, the Protection of Those Rights and Their Transfer” may be consulted.
The rights granted to the author by the FSEK are gathered under two categories, economic and moral. In practice, situations are frequently encountered in which these rights are exercised together, and indeed in which the exercise of one right brings the other into play as a natural consequence.
Moral Rights in a Work
Moral rights are rights attached directly to the person and incapable of being transferred to another. Although the right itself cannot be assigned, it is possible for the author to leave the power to exercise that right to another person. The rights in question are as follows:
- The right to decide whether the work is to be disclosed to the public
- The power to require that the author’s name be shown on the work
- The power to prevent alterations being made to the work
- The rights that may be asserted against the owner and the possessor of the tangible property in which the work is embodied
Economic Rights in a Work
Economic rights are determined exhaustively in the legislation. The rights of adaptation, reproduction, distribution and performance, together with the right of communication to the public by means of devices serving the transmission of signs, sounds or images and the right to a share and pursuit, fall within this category. No new economic right may be created in addition to those which the Law lists exhaustively. Unlike moral rights, these rights may be transferred and may pass to others.
Criminal Sanctions Prescribed for Infringements of Rights
An author whose rights have been infringed may resort to civil remedies in order to bring the infringement to an end or to make good the pecuniary and non-pecuniary loss suffered. In addition, various criminal sanctions are prescribed in Art. 71 and Art. 72 of the FSEK in respect of persons who violate the moral, economic or related rights attaching to protected works.
Infringement of Moral, Economic or Related Rights
Art. 71 of the Law on Intellectual and Artistic Works No. 5846
A person who, by infringing the moral, economic or related rights concerning intellectual and artistic works protected under this Law:
1. Adapts, performs, reproduces, alters, distributes, communicates to the public by any devices serving the transmission of signs, sounds or images, or publishes a work, a performance, a phonogram or a production without the written permission of the rightholders, or who offers for sale, sells, disseminates by way of rental or lending or in any other manner, purchases for commercial purposes, imports or exports, keeps in his possession otherwise than for the purpose of personal use, or stores works unlawfully adapted or reproduced, shall be sentenced to imprisonment from one year to five years or to a judicial fine.
2. A person who puts his own name to a work belonging to another as though it were his own work shall be punished by imprisonment from six months to two years or by a judicial fine. Where this act is committed by way of distribution or publication, the upper limit of the term of imprisonment shall be five years and no judicial fine may be imposed.
3. A person who quotes from a work without indicating the source shall be punished by imprisonment from six months to two years or by a judicial fine.
4. A person who, without the permission of the rightholders, makes a public disclosure concerning the content of a work which has not been made public shall be punished by imprisonment of up to six months.
5. A person who indicates an inadequate, incorrect or misleading source in relation to a work shall be punished by imprisonment of up to six months.
6. A person who reproduces, distributes, disseminates or publishes a work, a performance, a phonogram or a production by using the name of a well-known other person shall be punished by imprisonment from three months to one year or by a judicial fine. Persons who commit without authority the acts referred to in the first paragraph of Additional Article 4 of this Law, and information content providers who continue to infringe the rights recognised under this Law, shall, where their acts do not constitute an offence requiring a heavier penalty, be sentenced to imprisonment from three months to two years. Where a person who offers for sale, sells or purchases a work, a performance, a phonogram or a production that has been unlawfully produced, adapted, reproduced, distributed or published states, before the prosecution stage, from whom he obtained them and thereby secures their apprehension, the penalty to be imposed on him may be reduced, and it may also be dispensed with altogether.
Preparatory Acts Aimed at Rendering Protective Programs Ineffective
Art. 72 of the Law on Intellectual and Artistic Works No. 5846
A person who produces, offers for sale, sells or keeps in his possession otherwise than for the purpose of personal use programs or technical equipment aimed at rendering ineffective the additional programs created in order to prevent the unlawful reproduction of a computer program shall be punished by imprisonment from six months to two years.
The Complaint Requirement
In the offences explained above, the initiation of the investigation and prosecution processes has been made conditional upon a complaint. The principal persons and institutions upon whom our legislation confers the power to lodge a complaint are as follows:
- Persons whose rights have been infringed
- Professional associations
- The Ministry of Culture and Tourism
- The Ministry of National Education
- The Directorate General of Press and Publication
- Organisations representing the Turkish press
For a complaint to be regarded as valid, those holding rights in the work, or the professional associations of which they are members, must also submit to the file the documents establishing that capacity.
Upon a complaint made in due form, the law enforcement authority examines the incident constituting the offence and collects the evidence. Since matters of this kind are by their very nature treated as urgent, acting without loss of time is of the utmost importance if the proceedings are to be conducted soundly.
Procedure Followed in Criminal Proceedings
On the basis of a complaint made in due form, the public prosecutor’s office may order the protective measure of seizure in respect of the property forming the subject of the offence, within the framework of the provisions of the Criminal Procedure Code No. 5271. Where the infringement concerns the unauthorised reproduction of works, the prosecutor’s office may also order the suspension of the activity, limited to the reproduction activity constituting the offence. This order of the prosecutor’s office must be approved by the Criminal Judgeship of Peace within 24 hours; where such approval is not obtained, the order becomes void.
On the other hand, under the Industrial Property Act No. 6769, signs designed in such a way as to be capable of distinguishing the goods and services of one undertaking from those of others are characterised as a trade mark. Where the rights granted to the proprietor of a trade mark are infringed, it is likewise possible for criminal sanctions to be applied against the infringers in a manner similar to that described in this note. Our assessment concerning the definition of a trade mark, the protection it affords and the civil and criminal consequences of its infringement may be reached from our note entitled “Registration of a Trade Mark and the Rights Conferred by a Trade Mark”.
The details concerning the civil remedies available to an author whose rights have been infringed are set out in our study entitled “Actions That May Be Brought by the Author under the FSEK”.
Independent Legal’s Assessment
In copyright infringements, the criminal route is a mechanism that complements civil actions rather than one that takes their place. What is decisive in practice is that the offences are subject to complaint and that evidence can frequently be removed rapidly in the digital environment. For this reason, from the moment the infringement is detected, time management turns into a factor that directly affects the outcome of the file. Raising protective measures such as seizure and suspension of the activity at an early stage is functional in preventing the infringement from growing.
The second critical point is proof of entitlement. The first matter to be discussed is whether the complainant is able to document his capacity in relation to the work; although registration is not a constitutive act, it carries practical value at this stage.
When an infringement file is being constructed, it is appropriate to give priority to the following headings:
- Establishing from the outset, by means of documents, that the subject matter is a work and that entitlement exists
- Evidencing without delay the content forming the subject of the infringement, the date of its publication and the access details
- Characterising accurately which subparagraph of Art. 71 of the FSEK the act corresponds to
- Ensuring that the right of complaint is exercised within time and by the person entitled to do so
- Conveying requests for seizure and for the suspension of the activity to the prosecutor’s office at an early stage
- Determining at the same time the strategy for the civil actions to be conducted alongside the criminal route
Independent Legal provides services throughout the whole of this process in the field of intellectual property rights, from the preparation of the criminal complaint to the conduct of the criminal proceedings and the civil actions to be pursued in parallel.