Copyright Infringement

COPYRIGHT INFRINGEMENT:

Turkey was among the Top 20 Countries for Software Piracy and License Misuse in 2017. The use of unlicensed software and hardware is dangerously high in Turkey, representing 62 percent. This is fairly higher than the world average, 42 percent, and the European average, 32 percent.

The protection of the copyrights is regulated under the Law of Literary and Artistic Works No. 5846 (Law No. 5846).
The following are protected by copyright, according to Turkish Legal system:

• Original works that bear the characteristics and originality of the author.
• Works capable of being classified as:
o science and literature;
o music;
o fine art; or
o cinema.

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.
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.

Unlicensed software is unauthorized use or distribution of copyrighted software. It includes downloading, sharing, selling, or installing multiple copies of licensed software.

Unlicensed software use is illegal and can result in both civil as well as criminal penalties
Copyright protection arises irrespective of the nationality of the creator.
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.

Pursuant to Law No. 5846, the right holder can restrict any act infringing his/her moral and/or economic rights. Accordingly the right holder can prevent the third parties from:

• adapting the work;
• duplicating the work;
• distributing the work (in any medium);
• performing the work to the public;
• broadcasting or communicating the work to the public by any means of transmission of signs, sounds or images;
• disclosing the work to the public; or
• modifying the work.

The legal steps against copyright infringement in Turkish legal system as follows:
 
1- Determination of the infringer 
2- Criminal complaint and Search Warrant claim against the infringer
3- On-site monitoring by the police (in case we don't have log files, etc)
4- Criminal case and Lawsuit for Compensation

A- Civil Proceedings:

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).

According to Article 68(1) of Law No. 5846, the owner of the relevant work is entitled to 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, as calculated in line with the Law.

• Publication of the court's verdict.

B-Criminal proceedings

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.

Article 72 states the criminal liability specifically for those who create, offer, sell or possess, for any purpose other than private use, software or technical hardware that would circumvent the protective programs preventing illegal duplication. Any person who exploits the economic rights on a copyrighted work without the permission of the owner may be sentenced to imprisonment from one year to five years or be subject to a judicial fine.”

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