RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q/TUR/1
IP/Q2/TUR/1
IP/Q3/TUR/1
IP/Q4/TUR/1
12 April 2001
(01-1874)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
TURKEY1
The present document reproduces the introductory statement made by the delegation of
Turkey, the questions put to it and the responses given in connection with the review of legislation
undertaken at the Council's meeting of 27-30 November 2000.2
_______________
I. INTRODUCTORY STATEMENT
A. INTRODUCTION
In the knowledge based global economy in which we live, intellectual creativity is the main
asset of the individuals and societies to find various means to increase their productivity in order toreach better living standards.  Increased productivity can be achieved in a stable environment where
individuals and societies are given sufficient opportun ity to use their creativity, knowing that they will
benefit from their innovations having a trade value.  If this stability concerning the protection of
intellectual property is carried to international le vel in an equitable manner for all countries, this
increased productivity can spread further.
In light of these considerations, during the transition period Turkey has taken steps to make
its intellectual property legislation consistent with  the TRIPS Agreement.  Needless to say, we attach
great importance to this review.  This is due to the importance we attach to the TRIPS Agreement and
its implementation.
However, we regard the TRIPS Agreement as a dynamic instrument.  As a matter of fact,
certain negotiations and review mechanisms are already foreseen in the Agreement itself.  At this
stage, there is a need for a substantial discussion and negotiation process in order to find acceptable
solutions for some implementation related issues, in particular concerning enhanced protection for
geographical indications.  In this connection, I would like to express my deep appreciation for your
valuable efforts, Mr Chairman, as well as for those of the Chairman of the General Council, to carryon and sustain this process.
Better implementation of the Agreement can only be achieved, if it addresses the needs of the
WTO membership and if Members are convinced that they have something to gain from the
                                                     
1 As regards laws and regulations notified by Turkey under Article 63.2 of the Agreement, reference is
made to documents IP/N/1/TUR/2; IP/N/1/TUR/C/1 to  5; IP/N/1/TUR/D/1 and 2; IP/N/1/TUR/G/1 and 2;
IP/N/1/TUR/I/1;  IP/N/1/TUR/L/1; IP/N/1/TUR/P/1 and 2; IP/N/1/TUR/T/1 and 2 and IP/N/6/TUR/1.
2 The minutes of this meeting have been circulated as document IP/C/M/29.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 2
Agreement.  The TRIPS Agreement is more than a market access agreement, therefore due
consideration should be given to its particularities.
Protection of trade-related aspects of intellectual property should not be restricted within
limits of the rights of individuals.  Although the rights of individuals constitute a fundamental aspect
and a basic element of this system of protection, the rights of societies and member countries cannot
be ignored.  They should also enjoy a balanced protection.
While establishing this balance, we have to take into account the remarkable changes that
have occurred since the conclusion of Uruguay R ound Agreements and the increased awareness in the
area of intellectual property, as well as the different levels of development of members.
We also see this review of Turkey's legislation and the legislation review process in general as
part of this ongoing process.  We are happy to achieve consistency with the TRIPS Agreement, since
we regard it as the backbone of a system in which all members can mutually gain, if particular needs
of members are properly dealt with.
Intellectual and industrial property rights (IP) have been taken into consideration since late
1993 in Turkey, as to the questions of updating the old legislation or introducing a totally new one.
Ratification of international conventions and providing effective enforcement.
The TRIPS Agreement provided a good guidance to advance our IP system.  In this
presentation 1 would like to describe Turkish IP system within the light of TRIPS Agreement under
four headings:  legislation, conventions, enforcement and the relevant administrations  in charge of IP.
B. LEGISLATION
Patents
The Patent Decree 551 came into force in 1995 by replacing the Ottoman Empire Patent Law
dated 1879.  The new legislation was prepared in the light of the TRIPS Agreement and the European
Patent Convention (EPC).
The protection of utility models is also within the scope of the same Decree in accordance
with its own protection criteria.
Patentability criteria, protection term of 20 years, compulsory license provisions are all
incompatible with the TRIPS Agreement.  As to the compulsory license, Article 40 of the
Implementing Regulation has clarified that "importation" is considered as "working,"  of the patent.
I should emphasize that Turkey follows the path of Article 53 of the EPC concerning the
exclusions from patentability.  Micro-organisms and microbiological processes are within the scope of
patentable subject-matters.  Furthermore, pharmaceutical products have been protected since
1 January 1999.
Trademarks
The new Trademark Decree 556 entered into fo rce in 1995 together with its implementing
Regulation.  The new system is based on publication and opposition procedure before the registration.
Service marks, guarantee and collective marks are within the scope of the legislation.  The
initial period of protection is 10 years and this term can be extended by unlimited number of renewals.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 3
Additionally, the Trademark Decree requires "use" to maintain a registration, and the
registration may be cancelled only after an uninterrupted period of five years, unless valid reasons are
shown by the trademark owner.
Furthermore, well-known trademarks in the sense of Article 6 bis of the Paris Convention
1967) are considered among the grounds for refusal of registration or, if there is a registration they are
among the grounds for invalidity.
The Decree is based on EC Directive No. 89/104, in addition to the seven Articles (15 to 21)
of the TRIPS Agreement.
Industrial Designs
The TRIPS Agreement caused Turkey to pass its first industrial design legislation in 1995.
The Industrial Design Decree 554 and its Regulation are also based on EC Directive 98/71 which was
in a draft form in 1995.
The Decree provides for the protection of designs that are new and has individual character.
The system is based on non-examination, deferment of publication, and opposition by third parties.
In order to secure less costly protection for textile designs, a multiple application was
introduced.
The initial period of protection is five years which is renewable four times up to 25 years.Not to exempt cumulative protection for artistic designs under Copyright Law (Intellectual
and Artistic Works Act No. 5846) is another important feature of the Decree.
Unregistered design protection is provided through the unfair competition provisions of the
Turkish Commercial Code.
Geographical Indications
Like other Decrees mentioned before, Geogra phical Indications Decree No. 555 and its
Regulation were promulgated in 1995.
The protection under the Decree is based on registration, and the scope is wide enough to
cover all goods in addition to wines and spirits.  Furthermore, the requirements mentioned for winesand spirits in Article 23 of the TRIPS Agreement are taken as general requirements for all types of
goods subject to geographical indications.
Apart from protection for registered geographical indications, unregistered geographical
indication may benefit from unfair competition protection within the framework stated in theCommercial Code.
Topographies of Integrated Circuits and Plant Breeders' Rights
Now, I would like to touch upon two new drafts on industrial property Law:- Draft Law on the Protection of Semiconductor Chip Topography  which is based on
EC Directive 87/54, andIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 4
- Draft Law on the Protection of Plant Breeders' Rights  which introduces a sui generis
protection in line with the 1991 Act of the UPOV Convention.
Both Drafts were prepared in 1999 and are at the stage of introduction to the Parliament in
2001.
Copyright and neighbouring rights
Intellectual and Artistic Works Law No. 5846  was adopted in 1951.  Cinema, Video, Musical
Works Law No 3257 and 5 Regulations for the implementation of those Laws are in force.  Through
the amendment in 1995 by Law No. 4110; software and data base protection, extension of protectionto 70 years, protection for neighbouring rights were introduced to the copyright system.  A draft law
with a total of 41 Articles to amend the Intellectual and Artistic Works Law is in the Parliament. To
provide deterrent sanctions, and to update the Law in accordance with the need of digital environment
are among, the reasons of this amendment.
In all those legislation collecting societies are considered an important part of the IP system.
Protection of undisclosed information
There are five pieces of legislation which deserve to be mentioned:1. Contract Law, No. 818 brings obligation on the workers not to divulge business
secrets of the employee.  They may also be prohibited from dealing with competing
works.  The remedy for the infringement is compensation of the damages.
2. The second piece of legislation is the Commercial Code.  The Code provides that:
(a) seducing the employees, agents etc. into divulging trading secrets of their
employer;
(b) taking an illicit advantage from trade secrets obtained incompatible with good
faith, or divulging them to others
constitute unfair competition.  The Code provides civil (compensation for damages),
and criminal sanctions (Imprisonment and/or fire).
The third and fourth pieces of legislations are relevant for Article 39.3 of the TRIPS Agreement
concerning the marketing procedure.
3. Within this framework the Patent Decree 551 obliges public authorities (who take
application for marketing permission for pharmaceutical, agrochemicals or veterinary
products) not to disclose information and test results, and keep them secret; and
4. the Regulation for Pharmaceutical Products  which is in force since 1996, brings the
same responsibility on Ministry of Health to protect secrecy of information and test
results disclosed by the applicant during marketing approval for pharmaceutical.
5. Lastly, the Civil Servants Act No 657  supports the implementation of last two pieces
of legislation by bringing responsibility on civil servants employed in the Ministries
and public institutions not to divulge secret business information related to their
services.  Infringing the act of those two pieces of legislation brings responsibility of
the public administration in accordance with Administrative Law Principles andIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 5
legislation prepared within the framework of Article 125 of the Turkish Constitution.
(Article makes available to bring action against all acts and transactions of the public
administrations).  In such cases the remedy is compensation apart from the
disciplinary and criminal responsibility of the civil servant.
Control of anti-competitive practices on IP
This is governed by Competition Law No. 4054.   The Law is based on the provisions of the
EC's Treaty of Rome, and prohibits agreements, decisions and concerted practices in restraint of
competition, and abuse of dominant position.  In those days the Turkish Competition Board is
expected to prepare a block exemption Circular on transfer of, technology which will have relevantprovisions for licensing provisions on IP.
C. I
NTERNATIONAL CONVENTIONS
The following international conventions have been ratified by Turkey:
- TRIPS Agreement (since 1995);
- Paris Convention for the Protection of Industrial Property. (since 1925) including,
the Stockholm Act (since 1995),
- Nice Agreement concerning the classification of trademarks (since 1996);
- Patent Cooperation Treaty (since 1996);
- Vienna Agreement concerning the international classification of figurative elements
of trademarks (since 1996);
- Strasbourg Agreement on patent classification (since 1996);
- Budapest Agreement on the deposit of micro-organisms for the purpose of patent
procedure (since 1998);
- Locarno Agreement for the classification of designs (since 1998);
- Madrid Protocol relating to trademarks (since 1999);
- European Patent Convention since November 1, 2000;
- Berne Convention for the Protection of Literary and Artistic Works (since 1952) and
Paris Act of the Convention (since 1995),
- Rome Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations (since 1995).
In addition to those ratified conventions, the following conventions signed and their,
accession procedure is in the way of process:
- Hague Agreement Concerning the International Deposit of Industrial Designs (signed
on 4 February, 2000),
- Trademark Law Treaty (signed on 28 October, 1994),IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 6
- Patent Law Treaty (signed on 2 June, 2000).
Adherence to the UPOV Convention  shall be realized only after promulgation of the Draft on
the Protection of Plant Breeders' Rights.
Ratification of the twin Treaties of WIPO (Copyright Treaty, and Performances and
Phonograms Treaty) is on the agenda of Ministry of Culture.
D. ENFORCEMENT
Having considered Articles from 41 to 62 of the TRIPS Agreement, enforcement of IP in
Turkey may be touched upon briefly as follows:
Criminal sanctions stated in industrial property legislation are deterrent.  Duration of
imprisonment is between 1-4 years and the amount of fines is between 300 million - 1 billion TL.
The monetary fines are raised under Turkish Criminal Code in accordance with a re-evaluation ratioannounced per annum by the Ministry of Finance.  (This ratio was 52.1% for 1999).
Draft law to amend copyright legislation shall increase the sanctions in current Law.Seizure, forfeiture and destruction of the infringing goods are among the remedies stipulated
in IP legislation.
Length and Cost of Proceedings:
Turkish Constitution stipulates in Article 141 that  "Cases should he dealt with least possible
cost and should last expeditiously."   A criminal case lasts between 272-496 days while it is less than 1
year for civil cases in accordance with data of 1999.
Charges in civil cases are not costly.  (Petition charge is between 2.080.000 - 3.160.000 TL.
Decision charge is 045% of the value of the dispute when the court decide on the substance of the
case.  Concerning the decisions on provisional measures it is 3.390.000 TL.)  The party who lost the
case shall pay the cost including attorney's fee.
The State bears the necessary cost to carry out the criminal proceeding during the procedure.
However it is the convict who should pay the expenses at the end of the procedure.
Decisions and review
Decision on the merit of the case is in writing, and reasoned, and it is based on the evidence in
respect of which parties were offered the opportunity to be heard (Articles 382-393 of Civil
Procedural Law).
The review procedure of final administrative decisions by a Judicial authority is a
constitutional rule and this is provided actions brought before administrative courts.
Furthermore, all the initial Judicial decisions  of the court are Subject to review by upper
Courts and the Court of Cassation.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 7
Civil Procedure
In accordance with Article 59 of the Law on Civil Procedure "Each person who has capacity,
to act may bring, action and follow the suit either by himself or by a representative".   The judge may
invite the parties to the hearing (either ex officio or with a claim of a party) to express their view
orally (Article 219 of the same Act).  Otherwise parties are always informed through the court about
each others' evidence, and are given the chance to express their view in a written form also.  Therefore
there is no overly burdensome requirement concerning mandatory personal appearance.
On the question of civil  ex parte searches,  Article 368 and 369 of the Law on Civi1 Procedure
provide a procedure to help a plaintiff collecting evidence to build case.  In the event here there is arisk that evidence may be damaged or destroyed, or that delays will result in difficulties in producing
the evidence the plaintiff may apply to the court for a request to search.  If the court finds it necessary
to protect the Plaintiffs rights, Article 372 stipulat es that the court may dispense with the notification
of the opposing party.  The search of the infringer's premises for evidence must be conducted by a
judge in the presence of a bailiff, an expert witness appointed by a judge and the applicant.
For the cessation and prevention of the infringing, acts, and provisional seizure of the
infringing goods, general principles of injunctions  are introduced in the Articles 101-113 of the Law
on Civil procedure.  The Law requires plaintiff who claim injunction to pay a security  to meet likely
damage to defendant.  On the other hand a bad intentioned plaintiff to bring action may be imposed anadministrative fine by the court (Article 422).
Border enforcement
Turkey regulated the border enforcement Customs Law No 4458 and its implementing
Regulation as indicated in Articles 5 1-60 of the TRIPS Agreement.  We look into consideration the
EC Directive 3295/95 94 on the issue.  This system was introduced in 1996.
In our system suspension procedure applies not only by the initiative of the right holder but
also ex officio  by customs authorities.
Suspension procedure does not apply to parallel imports, goods in transit and to de minimis
imports as described in Article 60 of the TRIPS Agreement.
Courts
Intellectual property disputes are within the competence of commercial courts and general
criminal Courts at the moment.
In order to set up specialized courts on IP, two pilot projects (prepared in co-operation with
the EU and the World Bank) are in the way of implementation.
E. RESPONSIBLE INSTITUTIONS
The followings are the public institutions responsible for IP:
- Patent, trademark, geographical indications, designs and chip topographies are within
the competence of Turkish Patent Institute;
- Ministry of Culture is in charge of copyright and neighbouring rights;- Plant breeders' rights shall be governed by the Ministry of Agriculture;IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 8
- Undersecretariat of Customs is responsible from the border enforcement;
- Ministry of Justice is in charge of effective enforcement before the courts.In conclusion, considerable amount of work was achieved in Turkey for last five years
concerning the legislation passed and the awareness created among the public for these rights.
Anti-piracy associations began to be formed, research centres were introduced to the system, stagier
centres for judges and advocates included the IP in their curriculum.
Together with the priorities, an important place have been given to IP in the annual
programme of the Government in order to achieve an effective enforcement described in legislation.
_______________
The representative of the European Communitie s noted that Turkey had begun to implement
the TRIPS Agreement in various areas very early and that it continued to do so, as certain legislation
was still pending.  He hoped that this process would conclude shortly and his delegation would be
looking very closely at the final texts of the legislation.  He took note of the progress made in the area
of enforcement, as his delegation had often expressed its concerns regarding high levels of piracy and
counterfeiting.  He hoped that with the new provisions and a strengthened administration, it would bepossible to bring these rates down.  He also apprecia ted the important number of international treaties
and conventions to which Turkey had acceded.
_______________
II. QUESTIONS POSED BY CANADA
1. We understand that draft amendments are before the Turkish Parliament on copyright.
(a) When are such amendments  likely to be implemented?
Draft for Amendment of certain Articles of Law on Intellectual and Artistic Works prepared
in order to carry out the necessary amendments within the urging provisions due to national andinternational needs and foreseeing amendments within article 44 of the current law has been accepted
in Turkish Grand National Assembly, commission for National Education, Culture, Youth and Sports
with unanimity and is now within the agenda of General Assembly of Turkish Grand National
Assembly in order to be negotiated.  The draft is ranking as the 10th among the laws to be negotiated.
(b) What are the key improvements introduced by such amendments in respect of TRIPS 
obligations?
Comparative list about the draft law concerning the amendment of some articles of the Law
No. 5846 on intellectual and artistic works
The Bill provides the requirements of International Conventions, Treaties and Council
Directives as indicated below:IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 9
Draft Law Law International Conventions, Treaties
and European Council Directives
Article 4 Article 6 Article 10.2 TRIPS Agreement
Article 12 Article 19 Article 6 bis Berne Convention
Article 13 Article 22 Articles 9( 1) and 1(4) Berne Convention
Article 14 Article 23 Counc il Directive 92/100/EEC
Article 14 Berne Convention
TRIPS
Articles 6 and 7 WIPO Copyright Treaty
Article 15 Article 25 Articles 11 and 11 bis Berne Convention
Article 9 TRIPS AgreementArticle 11 WIPO Copyright Treaty
Article 18 Article 34 Articl e 2(5) Berne Convention
Article 19 Article 37 Articles 2( 7) and 2(8) Berne Convention
Article 15 Rome Convention
Article 26 Article 71 Article 61 TRIPS Agreement
Article 27 Article 72 Article 61 TRIPS Agreement
Article 28 Article 73 Article 61 TRIPS Agreement
Article 30 Article 76 Article 43 TRIPS Agreement
Article 31 Article 77 Articl es 51 – 60 TRIPS Agreement
Article 32 Article 80 Counc il Directive 92/100/EEC
Council Directive 93/83/EEC
Articles 7, 8, 10, 12, 13 and 15 Rome Convention
Articles 7, 8, 9, 10, 11, 12, 13, 14, 15 and 18 WPPT
Article 14 TRIPS Agreement
Article 33 Article 81 Article 61 TRIPS Agreement
Article 34 Article 82 Rome Convention
General provisions concerning the TRIPS Agreement
Article 35 Annex Article 2 Articles 7 and 8 Berne Convention
Article 37 Annex Article 4 Articles 11 and 12 WIPO Copyright Treaty
Articles 18 and 19 WPPT
Short explanations regarding the articles of the draft foreseeing amendment in Article 44 of
the applicable law are presented below.
- An explanatory text of article relating to the aim, scope and definitions has been
added to Law on Intellectual and Artistic works with number 5846.
- Due to the fact that definition for cinematographic works issued in Article 5 of the
applicable law has a very limited extend, the definition has been reorganised in harmony with
the technological developments and international legislation.
- Heading of Article 6 of the applicable law has been amended as "Adaptations and
Compilations", 11th sentence of first paragraph has been reorganised in order to differentiate
the data bases generated as a result of compilations from other selected and compiled works
and the expression stating "formed on conditions that the rights of the author of the work fromwhich it is benefited shall not be prejudiced" has been added to the beginning of second
paragraph.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 10
- With an arrangement made in Article 8 of the applicable law, it was stated that the
author is the real person who created the work of art, animators and dialogue writers have also
been included together with the authors of the cinematographic works as owners andprovisions containing arrangements related to the financial rights have been transferred to
Article 18 of the applicable law with respect to the systematic of the law.
- With an arrangement made in Article 10 of the applicable law, it was resolved that
rights of works of art created by contribution of more than one persons may be exercised by
real persons or legal entitles bringing all of the authors of the said work of art together.
- With an arrangement made in article 13 of the applicable law, establishment of an
effective intellectual property system was aimed with a recording-registering system created
in order for providing convenience in evidencing for determination of authorship without
establishing rights and for monitoring financial right assignments.
- Necessary arrangements have been made in Articles 15 and 16 related to intangible
rights of the applicable law in order to remove misinterpretations in exercising of the financial
rights.
- With the amendment carried out in Article 17 of the applicable law, determination of
exceptional rights held by authors during exhibition of rare works like handwritings, pictures,
etc., against the propriety owners of the concerned works of art has been aimed.
- With an amendment carried out in Article 18 of the applicable law, arrangements
related to financial rights within Article 8 of the applicable law have been transferred to thissection and also parallel to the amendment carried out in Article 10, it was resolved that legal
entities may exercise the rights upon the works of art created by their employees.
- Protection period stated in 2nd paragraph of Article 19 has been changed as 70 years
in order to establish the parallelism to the protection period within the general sense of the
applicable law.
- Expression of "the original and copies of the work" existing within article 22 of the
applicable law has been extracted from the text of the article and also due to the variations in
materials from which the work of art is recorded and of reproduction methods, expressions of
"by means of any way or method" and "directly or indirectly" have been added and
reproduction methods have been clearly expressed.
- It was resolved that the right to rent out, lend, put up for sale or distribute by other
means the original or the reproduced copies of  a work shall belong exclusively to the author
with the amendment carried out in Article 23 of the applicable law.  In this respect,
arrangements related to exercising of sales and distribution authorisations have been made.
- Transmission right to the public, including the internet, has been rearranged through
the amendment carried out in Article 25 of the applicable law. This arrangement shall enable
sales of the works of art by means of electronic commerce upon permission of the author.
- An arrangement related to the issue that "in  case of more than one authors, protection
period shall continue for 70 years after the death of the last surviving author" has been made
within Article 27 of the applicable law.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 11
- Resolution aiming that "presentation of a published work of art shall only be possible
within non-profiting organisations like education institutions exclusively for purposes of
education and instruction and only in places like classrooms and theatre halls dedicated to this
purpose and only for face-to-face instructional activities" has been established with thearrangement made in Article 33 of the applicable law.
- Creation of selected or compiled works for educational and instructional purposes
through adaptations shall only be possible upon the consent of the author, based on the
amendment carried out in Article 34 of the applicable law.
- An arrangement stating that some sections of intellectual and artistic works may be
used in nature of news for informative means with the amendment carried out in Article 37 of
the applicable law.
- An arrangement stating that exercising of the transporting media used for recording of
intellectual and artistic works in public places shall be subject to the permission of the authorand they shall bear the banderols related to the exercising the right in public places has been
made with the amendment carried out in article 41 of the applicable law.
- Arrangements related to incorporation of Professional Associations have been made
in Article 42 of the applicable law.
- Payments shall be made to the right owners by the broadcasting companies in case of
transmission of intellectual and artistic works through media like radio-television in
accordance with the amendment carried out in Article 43 of the applicable law.
- With amendments made in second and third paragraphs of Article 44 of the applicable
law, an arrangement containing deduction not exceeding three percent over the production
cost or importation cost of the transporting media used for recording intellectual and artistic
works and all kinds of technical devices utilised for reproduction of these and usage of this
deducted money in activities oriented to improvement of intellectual property system and
protection of cultural inheritance has been aimed.
- With the amendment made in second paragraph of Article 47 of the applicable law, it
was clearly stated that works of art created only by Turkish authors may become public
properties.
- In case of agreement before the stage of legal proceedings regarding reproductions
against the contract (smuggled reproductions), the author to grant the permission may claim
for up to maximum three times the amount which he might have obtained in the case of
execution of a contract or which is paid for the like works used or the amount of damages
sustained thereby according to the current value, in accordance with the amendment carried
out in 1st paragraph of Article 68 of the applicable law.
- With the amendment carried out in last paragraph of Article 71 of the applicable law,
an arrangement imposing punishment of imprisonment from 4 to 6 years and pecuniary
punishments from 50 to 150 billions of Turkish Lira in case of intrusion to intangible rights
has been made.
- With the amendment carried out in 1st paragraph of Article 72 of the applicable law,
arrangements imposing legal proceedings due to reasons of intrusion to financial rights of
author and punishment of imprisonment from 4 to 6 years and pecuniary punishments from 50
to 150 billion of Turkish Lira with the amendment carried out in the last paragraph of theIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 12
same article against persons performing or displaying a work or exhibiting such work on
public premises or organising such performance or disseminating the same by means of
transmission devices; against persons renting out a work or lending it to public and against
persons selling, disseminating and placing in commercial circulation in any mannerwhatsoever and using copies through importing such copies whether by legal or illegal means,
without the consent of the author have been made.
- Intentional and organisational breaches and penalties to be awarded against them have
been arranged in the amendment carried out in Article 73 of the applicable law and certain
arrangements have been made in enabling the penalties imposed for preventing the piracy acts
causing illegal and unjust revenues and breaches of intellectual rights to be dissuasive; thusthe punishment of imprisonment has been determined to be from 2 to 4 years and pecuniary
punishments has been determined from 10 to 50 billion of Turkish Lira.
- An amendment has been carried out in Article 75 of the applicable law and Ministry
of Culture and related professional associations have been accepted as among persons orinstitutions exercising the right to complain and certain arrangements have been made in
issues foreseeing that resolutions of closing, seizing and sealing a place by office of Public
Prosecutor, where illegal reproduction takes place in case of intrusion to intellectual rights
may be adopted ex officio and in case of repetition of the same offence, the penalties shall be
increased one time in order to enable the dissuasiveness of offences of infringement.
- An amendment has been carried out in Article 76 of the applicable law, foreseeing
establishment of Specialised Courts. A certain arrangement has been made for cases of
sufficient evidence indicating that the persons using the intellectual and artistic works have
not obtained the necessary permission and authorisation, the said persons shall bear theobligation to document their fair usages, with a paragraph added to the end of the article.
- Closing of the places where act of piracy have been determined to be carried out and
seizure of the copies determined to be reproduced illegally in Customs have been aimed
within the amendment made in Article 77 of the applicable law.
- Rearrangements have been made in provisions related to the rights of the authors and
financial and intangible rights of the neighbouring right owners and fundamental and
exclusive rights like reproduction, transmission and public transmission through amendments
carried out in Article 80 of the applicable law. Within this arrangement, film producers have
also been accepted among the neighbouring right owners. It was resolved that punishment of
imprisonment from 2 to 4 years and pecuniary punishments from 10 to 50 billions of TurkishLira shall be imposed against persons infringing rights of authors and those of neighbouring
right owners.
- Procedures and merits have been determined related to prevention of piracy acts and
application of banderoles that serve as a major determination instrument in differentiationbetween legal and illegal copies due to the fact that each banderole carries a serial number.
Furthermore, it was aimed that punishment of  imprisonment from 4 to 6 years and pecuniary
punishments from 50 to 150 billions of Turkish Lira shall be imposed against persons
committing one of the infringement cases stated within this article.
- A revocable protection has been provided through the amendment carried out in
additional Article 2 of the applicable law. In this respect, the cinema films, computer
programs, databases and phonograms created before the year 1995 shall be subject to the
protection periods determined within the general context of the law.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 13
- An article has been added to the draft, indicating the provisions repealed. In this
respect:
a) The expression "the original or adaptation of a worC in Article 24 of the
applicable law has been extracted from the text of the article in order to avoid from
repetitions due to the fact that adaptations are also accepted as works.
b) Article 28 of the applicable law has been repealed due to the fact that
translated works are also subject to provisions related to protection periods of the
applicable law.
c) Article 29 of the applicable law has been repealed and provisions within this
article have been added to Article 27 that is related to protection periods since it has
been resolved that arranging the protection periods in one sole article shall be
appropriate.
d) The expression "publication or" within article 38 of the applicable law has
been extracted from the text of article due to the fact that the act of publication is
placed within the scope of reproduction right, one of the financial rights of the author.
e) Article 39 of the applicable law has been totally repealed due to the fact that
the concerned article is open to interpretation to a degree that may cause infringement
of transmission rights of the authors of literal works of art.
f) Last paragraph of Article 57 of the applicable right has been repealed due to
the fact that it was determined to be in contradiction with the first paragraph of the
same article and Article 24 of the applicable law.
g) Paragraph (4) of the amended Article 73 has been repealed in order for
making the discrimination between smuggled broadcasting acts and pirate
broadcasting act and enforcement of provisions of article 68 "In Case of Intrusion to
Financial Rights" in case the amount reproduced exceeds the amount stated in the
contact.
- An arrangement adding an Additional Article 4 to the applicable law in order to
realise the protection of the information related to the works of art and the figures or codes
representing this information in the way dete rmined by the authors or right owners during
public presentation and transmission of the works of art, including the internet has been made.An additional arrangement has been made regarding the act of imposing punishment of
imprisonment from 2 to 4 years and pecuniary punishments from 10 to 50 billions of Turkish
Lira against unauthorised changes of this information and the figures or codes representing
this information.
- An Additional Article 5 has been added to the applicable law, aiming compilation of
reproduced copies of intellectual and artistic works to be carried out Minister of Culture, in
order to transfer these works of art, constituting a major part of the Turkish culture to the
future generations.
(c) In particular, how will they change copyright protection for pre-existing works,
sound recordings, and ex parte and injunctive relief?
Article 18 of Berne Convention is on the protection periods to be benefited by the works of
art that gained publicity or those not yet presented to public on the date when this contract becameIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 14
effective. Equivalence of the concerned article in Law on Intellectual and Artistic Works No. 5846,
amended with Law No. 4110 is Additional Article 2.
In accordance with Additional Article 2:"Protection periods in this law shall be applicable to the works, adaptations and productions
that gained publicity after the Law became effective with respect to affiliated rights,
cinematographic works, computer programs and databases. Provisions related to authorship of
cinematographic works shall be applied to cinematographic works started to be produced af
ter this Law became effective."
As seen above, Additional Article 2 foresees enforcement of the protection periods to the
work, adaptations and productions that gained publicity after the Law became effective with respect to
affiliated rights cinematographic works, computer programs and databases.
Protection periods start with emergence of the works of art i.e their determination or gaining
publicity. Enforcement of the beginning of protection periods to the works that gained publicity after
the Law with number 4110 became effective creates an inequality in works that are subject to shorter
protection periods like cinematographic works in Law dated 5/1211951 with number 5846. Due to
this reason, while some cinematographic works are subject to protection period of tenure of life plus
70 years, some are subject to 20 years of protection, a very short period when compared to the former.This fact constitutes a contradiction to Article 7 and Article 18 of Berne Convention for Protection of
Literal and Artistic Works to which our country is a party.
Furthermore, cinematographic works produced before 12/6/1995, validity date of the Law
with number 4110, and those subject to longer protection periods in countries of origin are subject toshorter protection periods in our country with the applicable Additional Article 2.
Due to this reason, the inequality between the work with respect of protection periods has
been removed through an arrangement made in Additional Article 2 with Law Draft Related to
Amendment of Certain Articles of Law on Intellectual and Artistic Works with number 5846 and a
revocable protection has been established; thus harmonisation with national and international
legislation has been established.
The arrangement within the second paragraph grants a transition period of 6 months directed
to protection of people holding possession of the copies of works after expiration of the protection
periods due to the truest reasons.
In this respect, Additional Article 2 within the draft has been reorganised as specified below.
"Additional Article 2-The provisions governing the terms of protection in the present Law
are, during the time the amendment made in this Article has taken effect, applicable to
1. All works, fixed performances and phonograms available in Turkey and produced by
authors and affiliated right owners who are citizens of Turkish Republic;
2. Foreign works, fixed performances and phonograms which have been produced in
other countries party to international contracts and agreements which Turkey is also aparty to and which have not become public since the term of protection has not
expired in those countries.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 15
Those who hold the possession of works, fixed performances and copies of phonograms
which are under protection as a result of application of first paragraph, may sell or dispose of
such copies until the end of six months following the date on which the law takes effect.
However, the exercise of rights with respect to works, fixed performances and phonograms
granted to authors and other right owners within the framework of the present law shall be
subject to the permission of the authors or right owners.
The provisions of the present law with respec t to authorship of cinematographic works are
applicable to cinematographic works the production of which is started after 12.06.1995 when
the Law with number 4110 entered into force."
2. What recourse do right holders have in respect of wilful trademark counterfeiting or
copyright piracy on a commercial scale, as required by Article 61 of the TRIPS Agreement?
Turkish trademark Law No: 556 provides for criminal procedures and penalties apply in
cases of wilful trademark counterfeiting with the Article 61/A which is in line with Article 61 of theTRIPS Agreement.
Article 61/A-6 of the Trade Mark Decree describes three types of infringement and
criminal remedies which are parallel to those issued in the Design and Patent Decrees:
(a) Infringements which require a prison term between 1 and 2 years and a fine between
300 million and 600 million Turkish Lira:
- False indication about the identity of the tr ademark owner in the course of a trademark
application.
- Removal without authority of the sign indicating a trademark rightfully placed on a
product or on its packaging.
- Falsely representing himself as the proprietor of a trademark application or a
registered trademark.
(b) Infringements which require a prison term between 2 and 3 years and a fine between
600 million and 1 billion Turkish Lira:
- To transfer, to place on security or to undertake any other transaction without having
any authority on trademark right, without being the rightful proprietor of thetrademark right or after the invalidation of the trademark:
- affixing signs on a product, or its packaging, or commercial documents, or
advertising materials, in such a way that would cause a false impression as there is a
registered trademark.
Infringements which require prison term between 2 and 4 years and a fine between
600 million and 1 billion Turkish Lira and closing down the business premises and
prevention of commercial activities at least for one year.
- committing the actions described in Article 61.
Regarding monetary fines and Act Amending the Criminal Code (No. 4421) introduced a new
system to raise the fines (not for only in copyright and industrial property legislation but all legislationIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 16
imposing fines). In accordance with this system, the raising of the fines is connected with a
re-evaluation ratio which is calculated and announced by the Ministry of Finance within the
framework of a average price rise per annum for the gross domestic product.  The re-evaluation ratiois 52.1% for the year 1999.
As to the question of copyright piracy the response should be given under the current Law
No. 5846, in case of infringements of moral and financ ial rights. In such a case, infringer who is the
one that directly commits counterfeiting is sentenced to imprisonment from 3 months to 1 year and a
fine from 300 million to 600 million Turkish Liras in accordance with Article 71 and 72. In case of
infringements described in Article 73 the penalties are imprisonment between 3 months and 3 years,
and fines between 300 hundred million and 600 hundred million Turkish Liras.
In the Bill through the amendments: all penalties in the current Law are increased as
mentioned in detail under
In the current Law, seizure, destruction and forfeiture of the counterfeiting goods and
production means and devices are stipulated in Article 79.
In addition to those remedies mentioned above the Bill adds closure of the business premises
where the counterfeiting committed in accordance with article 75.
3. What protection does your copyright legislation afford to "foreign works"?
In accordance with Article 88 of the Law on Intellectual And Artistic Works No. 5846, these
provisions of law shall be applied to:
1. All kinds of works that are presented to public for the first time in Turkey, those
placed in Turkey but not yet presented to public and all letters and pictures in Turkey, without
recourse to the nationality of the author;
2. All works of people of Turkish nationality that are either not presented to public
within Turkey or those presented to public for the first time outside Turkey;
3. All works belonging to foreigners not yet presented to public or presented to public
for the first time outside Turkey; with the proviso of existence of due provisions within an
International Agreement to which Republic of Turkey is a party.
Exemptions within provisions of the first and third paragraphs of this article by Board of
Ministers may be resolved, provided that the country of which the author is a citizen protects therights of Turkish authors to a certain degree or that an International Ag reement permits exemptions
and limitations related to the issues depending upon the authors of foreign works.
Second paragraph of Article 82 of the same law titled "The Scope and Terms of
Neighbouring Rights" governs the provision stating "Provisions of this law relating to neighbouringrights shall also be applied to performing artists, producers and radio-television institutions protected
in accordance with provisions of international agreements to which Republic of Turkey is a party."
In this respect, first, second and third sentences of Article 88 of the applicable law and second
paragraph of Article 82 are in harmony with first paragraph, Article 3 titled "National Treatment" ofthe text of the TRIPS Agreement.
In addition to this specific provisions in the Law on Intellectual and Artistic works, all
nationals of WTO members deserve national treatment under intellectual property legislation inIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 17
accordance with Article 3 of the TRIPS Agreement. Such interpretation and implementation of
Article 3 of the TRIPS Agreement is a constitutional result of Article 90 of Turkish Constitution.
Article 90 of the Turkish Constitution stipulates that after the ratification procedure all international
conventions have equal value of a national Law.
III. QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND THEIR
MEMBER STATES
A. GENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health and
nutrition, and to promote the public interest in se ctors of vital importance to your socio-economic and
technological development as mentioned under Arti cle 8 of the TRIPS Agreement.  If yes, please
explain how such measures are consistent with the provisions of the TRIPS Agreement.
Turkey has not got special provisions concerning the measures to protect public health,
nutrition, and to promote the public interest in sectors of vital importance as mentioned in Article 8 of
the TRIPS Agreement.
B. COPYRIGHT AND RELATED RIGHTS
2. Please state when the Draft Law amending certain articles of  Intellectual Artistic Works Law
No. 5846, will be brought into operation by the Turkish legislation (whose proposed amendments are
set out on pages 39 to 52 of document IP/N/TUR/C/1).
Obviously, certain amendments were carried out in some articles of Law on Intellectual and
Artistic Works No. 5846, through enactment of Law No. 4110 on 12 July 1995, in order for the
realization of our obligations indicated in Asso ciation Council Annex No. 8 No. 1/95 within the
framework of the Turkey-European Union Customs Union.
Subsequent to the enactment of Law No. 4110, Laws Related to Approval of Our
Participation into "Convention of Rome on Protection of Performing Artists, Phonogram Producers
and Broadcasting Companies" and "Charter of Paris Amending Berne Convention on Protection of
Literal and Artistic Works as Amended in 1979" became effective through being published in the
Official Gazette No. 22341 dated 12 July 1995.
Nevertheless, as a result of works in the technical level after the publication of Law No. 4110,
it was determined that some articles of Law No. 5846 are not in harmony with the contracts stated
above.
On the other hand, in spite of the amendments made within the law in 1995, serious
complaints have been received stating that Law on Intellectual and Artistic Works No. 5846 is
insufficient in protecting intellectual rights and meeting the demands in both the sectoral and
international level due to the reasons of non-dissu asiveness of the fees awarded against the breaches,
insufficiency of the customs measures taken for preventing the piracy, non-availability of therevocable protection with the applicable law, etc.
To this extent, a "Draft for Amendment of Certain Articles of Law on Intellectual and Artistic
Works (1/538)", prepared in order to carry out the necessary amendments within the urging provisions
due to the abovementioned national and international needs and foreseeing amendments withinArticle 44 of the applicable law, has been accepted in Turkish Grand National Assembly, Commission
for National Education, Culture, Youth and Sports with unanimity and is now within the agenda ofIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 18
General Assembly of Turkish Grand National Assembly in order to be negotiated.  The draft is
ranking as the tenth among the laws to be negotiated.
"Draft for Amendment of Certain Articles of Law on Intellectual and Artistic Works" has
been negotiated in Turkish Grand National Assembly, Commission for National Education, Culture,
Youth and Sports, consisting of the representative s of opposition parties and parties in power and
approved with UNANIMITY and transferred to the General Assembly with the Report dated 10 April
2000, Merit No. 1/538 and Resolution No. 15 of the Commission. The Draft is expected to be
negotiated in General Assembly within the following month.  The Draft shall be started to be enforced
subsequent to the enactment –its publication in Official Gazette.
3. Please explain Articles 1 and 2.3 of Law No. 5846 in view of the phraseology of Article 9.2 of
the TRIPS Agreement.
Article 9.2 of the TRIPS Agreement bears the provision of "Protection of rights to think does
not comprise opinions, methods, operational methods or mathematical concepts, but their
expressions".  A work is defined as "any kind of intellectual and artistic creation bearing thecharacteristics of its author and which is considered scholarly, literary, musical, artistic or
cinematographic" in Article 1 of the Law No. 5846. With the expression of "any kind of intellectual
and artistic creation" protection of works (novels, pictures, musical compositions, films, etc.) created
materially as a result of expression of ideas is provided.  In this respect, Article 1 of the Law is in
harmony with Article 9.2 of the TRIPS Agreement.  The concerned article laid down two conditionsfor the determination of the qualification for a "work", one in merits and the other in form:
a) Condition Regarding the Merits; Bearing the characteristics of its author.  The
thought tried to be underlined here is that the idea shall have a characteristic of its
author, as stated in Article 9.2 of the TRIPS Agreement, no matter whether thischaracteristic exists in form or in contents, the important point is existence of an
independent and creative study to be attributed more or less to its author.
b) Condition Regarding the Form; Belonging to one of the categories of work stated
within the Law.  It may be stated that some practical obligations generated from the
techniques of the law governed the approval of the condition regarding the form by
the Turkish Legislators.  In this respect, while the issues to be understood from thedefinition of "Intellectual and Artistic Works", and also the examples written in law
enlighten the judges in hesitation.
Article 4 of Law No. 5846 laid down the conditi on of "having an esthetical value" for the
works of art subject to protection while defining them in paragraph one.  "All kinds of pictures,patterns, architectural works, textile and fashion designs and graphic works" are also included within
the works stated within the concerned article.  Within paragraph 3, defining scholarly-literary works,
of Article 2 of the applicable law, however, "all kinds of plans, projects, sketches, pictures, all kinds
of architectural and city designs and projects, environmental and stage designs not having esthetical
value" are also included within this category.
In this way, protection of these studies having scientific nature generated as a result of
expression of ideas, are also provided in accordance with Article 9.2 of the TRIPS Agreement, in spite
of the fact that they do not have any esthetical value.  Furthermore, Article 2 of the applicable law is
in harmony with paragraph one of Article 2 of the Berne Convention.
4. Please explain the meaning of "bearing the characteristics of its owner" in Article 1 of Law
No. 5846 and what is its basis in the TRIPS Agreement?IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 19
The thought tried to be underlined in the expression "bearing the characteristics of its author"
is that the characteristics within the expression style of the idea belongs to the author himself. Since
the expression styles of the ideas are individualistic, the work created bears the characteristics of its
author.  Due to this fact, it is emphasized that the concerned intellectual labour and characteristics areprotected by means of law.  Its support in the TRIPS Agreement is the meaning of the expression of
"Protection of rights to think comprises expression style thereof" stated in Article 9.2 of the TRIPS
Agreement.
5. Please explain the meaning of "that do not hav e rhetorical character" in Article 2.3 of Law
No. 5846 what is its basis in the TRIPS Agreement?
Article 9.1 of the TRIPS Agreement, entitled "Relation to the Berne Convention" obligates
observance of the provisions of Articles 1-21 of the Berne Convention.    
Within the systematics of Law No. 5846, the works stated within Article 2 of the Berne
Convention are defined in 5 groups.  These are scholarly-literary works, works of art,
cinematographic works and adaptations.
Some of the works indicated within the group of scholarly-literary works like plans, projects,
maps, sketches have technical and scholarly characteristics but they do not have an esthetical value as
the works of art.  For the works within this category, esthetical quality does not have any significance;
instead, the independent labour exhausted in order for teaching or explaining a certain scientific andtechnical matter through figuring it out is protected.  This protection provided is in accordance with
the issue of protection of expression styles of the ideas in Article 9.2 of the TRIPS Agreement.
Follow-up question:
Please clarify the meaning of “that do not have rhetorical character” in Article 2.3 of Law
No. 5846, and its compatibility with Ar ticle 9.2 of the TRIPS Agreement.
The expression "that do not have rhetorical character" was used for works like plans, projects,
and sketches that have technical and scholarly characteristics but do not have an "esthetical value" as
works of art, as incorporated in Article 2.3 of the Law No. 5846.  These kinds of works are protected
under the scope of scholarly-literary works of art, in accordance with the reference made to the BerneConvention in Article 9.1 of the TRIPS Agreement, as stated in Article 2 of Berne Convention.
Compliance with the expression "that do not have rhetorical character" used in the meaning of bearing
no esthetical value with Article 9.2 of the TRIPS Agreement is considered under the general principle
of protection of the work of art generated as a result of concrete expression of abstract thoughts, not
just the abstract thoughts themselves.  Therefore, the independent labour exhausted in order to createor explain any scientific or technical issue through formulating thereof shall be protected and while
providing such protection, esthetical value borne by the works of art within the said category do not
have any significance.
6. Please explain why "ideas and principles in" are limited to such ideas and principles
"constituting a basis for any element of a computer program" in Article 2.3 of Law No. 5846 and notto the broader concept of Article 9.2 of the TRIPS Agreement, namely to "expressions and not to
ideas, procedures, methods of operation or mathematical concepts as such"?
It has been stated in Article 9.2 of the TRIPS Agreement that expression styles of thoughts are
protected.  Protection is limited with works only. In this respect, the word "product" in Article 1 of the
applicable Law constitutes a parallelism with "expression styles" in Article 9.2 of the TRIPSAgreement.  Due to this fact, it has been admitted  that expression of thoughts and principles cannot beIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 20
accepted as "works" within Article 2.3 of the applicable Law is thought to be in accordance with
Article 9.2 of the TRIPS Agreement.
Follow-up question:
Please clarify the definition of “ideas and principles" in Article 2.3 of Law No. 5846 and its
compatibility with Article 9.2 of the TRIPS Agreement.
As already known, in accordance with Article 9.2 of the TRIPS Agreement, protection of
rights to think does not comprise opinions, methods, operational methods or mathematical concepts,
but their expressions.  The definition of "ideas and principles" in Article 2.3 of Law No. 5846 were
used in order to emphasise "opinions and operational methods" stated in Article 9.2 of the TRIPS
Agreement. On the other hand, a computer program is made up of components serving ascomplementary to each other.  These components, forming a unity through serving as complementary
to each other do not bear the characteristics of a work of art due to the fact that individually they are
not functional.  Ideas and principles, however, serving as the basis for these components are not
provided with protection as they do not convert into a concrete expression having the characteristics
of a work of art.
7. Please explain Article 2.1 of Law No. 5846 in view of Article 10.1 of the TRIPS Agreement.
Paragraph (1) of Article 2 of Law No. 5846 "the preparatory studies thereof with the proviso
of ensuring the formation of a program within the next phase" are also accepted as scholarly–literary
works, as for the computer programs.
Source or application codes are components that constitute the basics of the computer
programs.  Computer programs are created through the combination of these.
In this respect, the source or application codes combined in order to create a computer
program, but still within the preparatory phase are also protected with the expression of "the
preparatory studies thereof with the proviso of ensuring the formation of a program within the next
phase" in the abovementioned paragraph (1).
The concerned paragraph is deemed to be the equivalent of the expression in Article 10.1 of
the TRIPS Agreement.
8. What is the reason for the proviso to Article 2.1 of Law No. 5846 "that these lead to a
program in the next stage" and what is its basis in the TRIPS Agreement?
Article 9.2 of the TRIPS Agreement bears the provision of "Protection of rights to think does
not comprise opinions, methods, operational methods or mathematical concepts, but their
expressions".
The expression of "with the proviso of ensuri ng the formation of a program within the next
phase" in paragraph (1) of Article 2 of Law No. 5846 foresees protection of these preparatory studies
with the proviso of emerging of these as expression of ideas.
This condition corresponds to Article 9.2 of the TRIPS Agreement.
9. Why do the first sentence of Article 40 and the final sentence of Article 43 of Law No. 5846
extend beyond the limitations and exceptions provided for in Article 13 of the TRIPS Agreement which
restrict such limitations and exceptions to "certain special cases"?IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 21
In accordance with Article 13 of the TRIPS Agreement:
"Members shall confine limitations or exceptions to exclusive rights to certain special cases
which do not conflict with a normal exploitation of the work and do not unreasonably
prejudice the legitimate interests of the right holder".
The first sentence of Article 43 of Law No. 5846 bears a provision of exception not
contradictory to ordinary usage of the work.  Since the works of art that are continuously exhibited in
public places are presented to the public usage free of charge and in an unlimited manner through the
consent of the author, it is possible for the concerned works of art to be transmitted to public in
different ways.  In this respect, this provision is  deemed not to exceed the limitations and exceptions
stated in the TRIPS Agreement.
The last sentence of Article 43 of Law No. 5846, however, has been extracted from the text of
the article with a Draft Law that will be negotiated in General Assembly of Turkish Grand National
Assembly, since it is deemed to exceed the limitations and exceptions stated in Article 13 of the
TRIPS Agreement, and the concerned article has been amended as shown below, together with its
title.
Payments Relating to the Intellectual and Artistic Works Broadcast and/or Transmitted
Through Media such as Radio and Television:
Article 43.  Radio and television institutions have to obtain prior permission of the authors
relating to works performed on stage from which they shall make benefit for their broadcasts.
Radio and television institutions and satellite and cable broadcasting institutions and those
institutions broadcasting by utilizing from the technical means whether existing or to be
discovered in the future shall be obliged in respect of the intellectual and artistic works, other
than stage works used by them in their broadcasting to obtain permission by executing a
written collective agreement conforming to Article 52 with the authors and/or right ownersaffiliated with authors or the professional associations which they are affiliated with and to
effect the payment for such usage to the aut hors and/or affiliated right owners or the
professional associations which they are affiliated with.
The procedures and principles applicable to such usage shall be laid down by a regulations to
be executed by the Ministry of Culture through obt aining the opinion of Supreme Board for Radio and
Television and the respective professional associations.
Follow-up question:
What is the state of play on the “Draft for amendment of Certain Articles of Law on
Intellectual and Artistic works” (1/5328), which should modify current Article 43 of Law No. 5846?
Article 43 has been re-arranged through Law No. 4630, amending certain articles of Law
No.  5846.  Providing a more efficient protection to the author of the work of art and activating the
professional associations for this purpose were aimed with the concerned amendment. Exemptions
considered to be exceeding the limitations and except ions related to "certain exemptions" in Article 13
of the TRIPS Agreement were totally annulled.  On the other hand, radio and television corporations
and satellite and cable broadcasting institutions and those institutions broadcasting by utilising from
the technical means whether existing or to be discovered in the future shall be obliged in respect of
the intellectual and artistic works, other than stage works used by them in their broadcasting to obtain
permission by executing a written collective agreement conforming to Article 52 with the authorsand/or right owners affiliated with authors or the professional associations which they are affiliatedIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 22
with and to effect the payment for such usage to the authors and/or affiliated right owners or the
professional associations which they are affiliated with.  The Regulation through which procedures
and merits related to the usage of the works of art will be regulated is urgently being prepared and the
enforcement is expected to be realised within a short time.
10. In terms of Article 9.1 of the TRIPS Agreement,  Members must comply with Articles 1 through
21 of the Berne Convention (1971) and the appendix thereto.  Please describe and explain the
provisions of your legislation that comply with each of these Articles in Law No. 5846 or any other
law in operation in Turkey.
Law No. 5846 Berne Convention
Articles 2, 3, 4 and 5 Article 2(1)
Article 6 Article 2(3)
Article 6 and 9 Article 2(5)
Articles 13, 19, 48, 49 and 63 Article 2(6)
Article 36 Article 2(7 and 8)
Article 32 Article 2 bis (1)
Article 7 Article 3(3)
Articles 14, 16 Article 6(1)
Article 26 Article 7(5)
Article 26 Article 7 bis
Article 21 Article 8
Article 22 Article 9
Articles 35 and 36 Article 10
Article 36 Article 10 bis
Article 24 Article 11
Article 25 Article 11 1st bis
Articles 6, 14, 21 and 25 Article 11 2nd bis
Articles 16 and 21 Article 12
Articles 6, 21, 22, 23 and 24 Article 14(1 and 2)
Articles 5 and 8 Article 14 bis
Article 45 Article 14 bis (2)
Article 11 Article 15(1)
Article 12(1) Article 15(3)
Articles 68, 77, 79 Article 16
Article 81 Article 17
Draft Law Berne Convention
Article 12 Article 6 bis
Article 13 Article 9(1)
Article 14 Article 14
Article 15 Articles 11 and 11 bis
Article 18 Article 2(5)
Article 19 Article 2(7) and 2(8)
Article 35 Article 7 and 8IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 23
Follow-up question:
Please clarify the provisions in your legislation that comply with Articles 3(1), 3(2), 3(3), 4,
5, 6(2), 6bis, 7(1), 7(2), 7(3), 7(4), 7(6), 7(7), 7(8), 13(3), 14(3) 15(2), 15(4), 18, 19, 20 and 21 of theBerne Convention, as required by Article 9.1 of the TRIPS Agreement.
I. Article 88 of Law on Intellectual and Artistic Works No. 5846 as amended with Law
No. 4630 bears the provision that:
"Provisions of this law shall be applied to:
1. All kinds of artistic works that are presented to public for the first time in Turkey,
those placed in Turkey but not yet presented to public and all letters and pictures in Turkey,
without recourse to the nationality of the author;
2. Artistic works of people of Turkish nationality that are either not presented to public
within Turkey or those presented to public for the first time outside Turkey;
3. All artistic works belonging to foreigners not yet presented to public or presented to
public for the first time outside Turkey; with the proviso of existence of due provisions within
an International Agreement to which Republic of Turkey is a party.
Exemptions within provisions of the first and third paragraphs of this article by Board of
Ministers may be resolved, provided that the country of which the author is a citizen protects
the rights of Turkish authors to a certain de gree or that an International Agreement permits
exemptions and limitations related to the issues depending upon the authors of foreign artistic
work."
Additional Article 2 of Law on Intellectual and Artistic Works No. 5846, as amended with
Law No. 4630 bears the provisions that:
"The provisions governing the terms of protection in the present Law are, during the time the
amendment made in this Article has taken effect, applicable to;
1. All works, fixed performances and phonograms available in Turkey and produced by
authors and affiliated right owners who are citizens of Turkish Republic;
2. Foreign works, fixed performances and phonograms which have been produced in
other countries party to international contracts and agreements which Turkey is also a party toand which have not become public since the term of protection has not expired in those
countries.
Those who hold the possession of works, fixed performances and copies of phonograms
which are under protection as a result of application of first paragraph, may sell or dispose ofsuch copies until the end of six months following the date on which the law takes effect.
However, the exercise of rights with respect to works, fixed performances and phonograms
granted to authors and other right  owners within the framework of the present law shall be
subject to the permission of the authors or right owners.
The provisions of the present law with respect to ownership of cinematographic works are
applicable to cinematographic works the production of which is started after 12.06.1995 when
the Law with number 4110 entered into force."IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 24
In this respect, Article 88 and Additional Article 2 of the concerned law are in compliance with
Article 3(1), 3(2), 4, 5, 6(2) and 18 of the Berne Convention.
II. Article 7 of Law on Intellectual and Artistic Works No. 5846, as amended with Law No. 4630
bears the provision that:
"A work of art presented to public through taking the consent of the author shall be deemed to
be revealed to public. If copies of a work of art, obtained through reproduction of the original
are presented to public through being offered for sale or distributed or placed in commercial
circulation in other ways, via taking the author’s consent, the concerned work of art shall bedeemed as a published one."
Amended paragraph 1 of Article 22, however, bears the provision that:"The right to reproduce the original or copies of a work wholly or in part, in any manner or
through any method, whether directly or indirectly and whether temporarily or permanently
belongs exclusively to the author."
In this manner, provisions of the above-mentioned article serve compliance with paragraph one of
Article 3(3) of the Berne Convention.
On the other hand, of the Law No. 5846, as amended with Law No. 4630.  Paragraph 2 of
amended Article 22 bears the provisions of:
"Reproducing a second copy of a work of art, ob tained from the original or recording thereof
to all kinds of current devices used for transmission or re-transmission of signals, sounds
and/or images or to those to be developed in the future, all kinds of audio and musical
recordings and implementation of plans, drawings and sketches pertaining to architectural
works  shall also be deemed as reproduction. The same rule shall apply to reliefs  and
perforated calibres."
Paragraph 1 of Article 24 bears the provision of:"The right to benefit from a work of art through reading out, playing, performing or exhibiting
thereof directly or by means of devices used for transmission of signals, sounds or pictures
shall exclusively belong to the author."
Paragraph 1 of amended Article 25 bears the provision of:
"The right to broadcast the original or the copies reproduced from the original through
institutions making broadcasts by wire or over  the air such as radio-television, satellite and
cable or through instruments enabling transmissi on of signs, sounds and/or images including
digital transmission and to transmit such broadcasted works publicly by way of
rebroadcasting the same through other broadcasting institutions benefiting from the
broadcasts of the aforementioned institutions, belongs exclusively to the author."
The above-mentioned provisions include the terms foreseen in second paragraph of
Article 3(3) of the Berne Convention.
III. Paragraph 3 of amended Article 13 of Law on Intellectual and Artistic Works, as amended
with Law No. 4630 bears the provision that:IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 25
"Authors of cinematographic and musical works and producers shall arrange for  the record
and registration of those work with a view to avoid the breach of the financial and moral
rights they have, determine their authorship, provide convenience in evidencing, and follow
up the dispositions of financial rights, without ha ving a purpose of establishing rights. To this
end, dispositions of works and financial rights can be kept under record upon request by the
author of the work in the case of other work groups also. The principles and procedures
regarding record and registration shall be laid down by the regulations to be executed by the
Ministry of Culture."
In accordance with amended paragraph 3 of Article 16 of the concerned law, the author may
prohibit any modifications that are derogatory to the nature and character of his work or prejudicial tohis honour and reputation, even if he has given his unconditional written approval.  Any renunciation
of his authority to prohibit by contract is null and void.
Provisions of the above-mentioned article serve compliance with Repeated Article 6(1) of the
Berne Convention.
Furthermore, amended Article 19 of the same law bears the provision of:"In case modes of utilisation of the authorisations granted to the author via the first
paragraphs of Article 14 titled 'Authorisation Granted to the Author for Presentation to Public'and of Article 15 titled 'Mentioning the Name' are not determined by the author or in case the
author does not inherit the same to anyone, exercising of the concerned authorisation
subsequent to the death of the author shall belong to the executor, if not appointed, to the
surviving spouse and children and testamentary heirs, father and mother and brothers and
sisters of the author respectively.
After the death of the author, the persons enumerated in the preceding sub-article may
exercise in their own name the rights conferred upon the author according to rights granted in
third sub-articles of Article 14 titled 'Authorisation Granted to the author for Presentation to
Public' and of Article 15 titled 'Mentioning the Name' and those in the articles bearing the title
'Prohibiting Modification in Works' for a period of 70 years after the death of the author."
This serves compliance with Repeated Article 6(2) of the Berne Convention.
Paragraph 1 of Article 88 titled 'Discrepancies in Laws' bears the provisions that:"Provisions of this work shall be applied to:
1. All kinds of artistic works that are presented to public for the first time in Turkey,
those placed in Turkey but not yet presented to public and all letters and pictures in Turkey,
without recourse to the nationality of the author;
2. Artistic works of people of Turkish nationality that are either not presented to public
within Turkey or  those presented to public for the first time outside Turkey;
3. All artistic works belonging to foreigners not yet presented to public or presented to
public for the first time outside Turkey; with the proviso of existence of due provisions withinan International Agreement to which Republic of Turkey is a party."
This serves compliance with Article 6 Repeated Article (3) of the Berne Convention.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 26
IV. In accordance with first sentence of paragraph 1 pertaining to Article 27 of Law on
Intellectual and Artistic Works No. 5846, as amended with Article 4630, protection period shall last
as long as the author survives and for 70 years after the death of the author.  Provision of the above-
mentioned serves compliance with Article 7(1), 7(2) and 7(6) of Berne Convention.
Furthermore, in accordance with paragraph 3 of  the amended Article 27 of the concerned law:
"In cases stated within paragraph one of Article 12 titled 'Works of art of which authors are
not determined', the protection period shall be 70 years after the work becomes public, unless
the author discloses his/her name before the expiration of the concerned period."
Provision of the above-mentioned article serves compliance with Article 7(3) of the Berne
Convention.
Furthermore, Article 29 titled 'Period for Handcrafts, Small Works of Art, Photographic and
Cinematographic Works' of Law No. 5846, as amended with Law No. 4630 has been annulled, so thatfurnishing thereof with the same protection periods as the other works of art has been aimed. This
arrangement serves compliance with Article 7(4) of Berne Convention.
In accordance with first sentence of paragraph 1 pertaining to Article 27 of Law on
Intellectual and Artistic Works No. 5846, as amended with article 4630, protection period shall last aslong as the author survives and for 70 years after the death of the author.
In accordance with amended paragraph 5 pertaining to Article 82 of  Law on Intellectual and
Artistic Works, as amended with Law No. 4630, the term of rights of performing artists shall
commence with the date when the first fixation of pe rformance is made and continue for 70 years.  If
the performance has not yet been fixed, such period shall commence with the date of the performance
first becoming public.  Based on amended paragraph 6, the term of rights of producers in 70 years,
commencing with the date of the first fixation being made. In accordance with amended paragraph 7,
however, rights of radio-television corporations shall commence when the program is first broadcast
and shall last for 70 years.
Provisions of the above-mentioned article serve compliance with Article 7(7) of Berne
Convention.
Together with sub-paragraph 2 of paragraph 1 pertaining to Additional Article 2 of Law
No. 5846, as amended with Law No. 4630, is was resolved that the provisions governing the terms of
protection in Law No. 5846 are, applicable to foreign works, fixed performances, and phonogramswhich have been produced in other countries party to international contracts and agreements which
Turkey is also a party to and which have not become public since the term of protection has not
expired in those countries. This arrangement serves compliance with Article 7(8) of the Berne
Convention.
V. Paragraph 2 pertaining to amended Article 77 titled 'Interlocutory Injunction and Temporary
Seizure by the Customs' of the Law No. 5846, as amended with Law No. 4630 bears the provision
that:
"The provisions of the Article 57 of the Customs Law Numbered 4458 shall apply at the time
of import or export of copies necessitating a sanction due to the possibility of constitution of
infringement of the rights on the work."
This serves compliance with Article 13(3) of the Berne Convention.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 27
VI. In accordance with paragraph 3 pertaining to amended Article 80 of Law on Intellectual and
Artistic Works No. 5846, as amended with Law No. 4630:
"A real person or legal entity whose name is cited in the usual manner in a cinematographic
work is considered as the producer of the said cinematographic work unless there is evidence
otherwise."
In this respect, Article 15(2) is in compliance with the above-mentioned provision of the concerned
law.
VII. Article 12 of Law on Intellectual and Artistic Works No. 5846, as amended with Law
No. 4630 bears the provisions that:
"In case author of a published work of art is not determined in accordance with Article 11,
person who publishes the concerned work of art, or in case of not determined either, person
who reproduces the same may exercise the rights  and authorisations pertaining to the author
on his-her own behalf.
These authorisations, together with the prima facie evidence in paragraph 2 of Article 11,
shall belong to the person convening the conference or enabling performance of the
concerned work, in case the author is not determined.
In accordance with this article, unless otherwise stated, provisions of common procuration
shall apply in case of relations between auth orised persons and original rights owners."
This serves compliance with Article 14(4) of the Berne Convention.VIII. 18)IX. Paragraph 1 of Article 88 titled 'Discrepancies in Laws' bears the provisions that:
"The provisions of this law shall be applied to:
1. All kinds of artistic works that are presented to public for the first time in Turkey,
those placed in Turkey but not yet presented to public and all letters and pictures in Turkey,
without recourse to the nationality of the author;
2. Artistic works of people of Turkish nationality that are either not presented to public
within Turkey or those presented to public for the first time outside Turkey;
3. All artistic works belonging to foreigners not yet presented to public or presented to
public for the first time outside Turkey; with the proviso of existence of due provisions within
an International Agreement to which Republic of Turkey is a party."
In accordance with first sentence of paragraph 1 pertaining to Article 27 of Law on
Intellectual and Artistic Works No. 5846, as amended with Article 4630, where provisions regarding
the protection periods are arranged, protection period shall last as long as the author survives and for
70 years after the death of  the author.
In this context, provisions of the above-mentioned article serve compliance with Article 19 of
Berne Convention.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 28
X. paragraph 2 pertaining to Article 88 of Law on Intellectual and Artistic Works, as amended
with Law No. 4630 bears the provision that:
"Exemptions within provisions of the first and third paragraphs of this article by Board of
Ministers may be resolved, provided that the country of which the author is a citizen protects
the rights of Turkish authors to a certain de gree or that an International Agreement permits
exemptions and limitations related to the issues depending upon the authors of foreign artistic
works."
This serves compliance with Article 20 of the Berne Convention.
11. Where are provisions complying with the five paragraphs of Article 14 of the TRIPS
Agreement to be found in Law No.5846 or in any other law of Turkey?
- Article 80/5 of Law No. 5846 is in accordance with Article 14.2;
- Article 80/6 of Law No. 5846 is in accordance with Article 14.3;- Article 80/6 of Law No. 5846 is in accordance with Article 14.5;- Article 80/7 of Law No. 5846 is in accordance with Article 14.5.
Follow-up question:
Please clarify how Article 80.2 of Turkish law No. 5846 is in accordance with Article 14.1 of
the TRIPS Agreement.  Moreover, please clarify how the remaining paragraphs of Article 80 of the
same law, i.e. 80.5, 80.6 and 80.7 are in accordance with the remaining paragraphs of Article 14.
Article 80 of the Law on Intellectual And Artistic Works No. 5846, regulating neighbouring
rights, was amended in order to obtain its complian ce with the international system and in accordance
with Directive 92/100/EEC of the European Union,  together with title of the Law No. 4630 and
expressions serving complementary to the article were added.  Furthermore, all of the arrangements
conducted within the concerned article were carried out in compliance with Article 14 of the TRIPS
Agreement.   According to this:
Article 14.1 of the TRIPS Agreement bears the provision of:
"In respect of a fixation of their performance on a phonogram, performers shall have the
possibility of preventing the following acts wh en undertaken without their authorization:  the
fixation of their unfixed performance and the reproduction of such fixation.  Perofrmers shall
also have the possibility of preventing the following acts when undertaken without theirauthorization:  the broadcasting by wireless means and the communication to the public of
their live performance."
The first subparagraph within the first paragraph of Article 80 of the Law No. 5846, as
amended with Law No. 4630 primarily sets forth w hom can be neighbouring rights owners and states
that during performance of a work of art, consent of the author of the concerned work of art shall beobtained with the proviso of not damaging fina ncial and intangible rights of the author.
The second sub-paragraph of paragraph 1-A, where rights of the performing artists whom are
neighbouring rights owners are determined states that:IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 29
"Any performing artist performing a work in an original way by means of consent granted by
the author thereof shall exclusively have the right to permit or prohibit fixation, reproduction,
selling, distribution, renting out, and lending, transmission to public by means of media used
for transmission of signals, sounds and/or images and re-transmission and playing of theconcerned work"
This serves compliance with the first sentence of Article 14.1 of the TRIPS Agreement.
The fourth sub-paragraph within paragraph 1-A of the same article, however, bears the
provision:
"Performing Artist shall have the exclusive right to permit or prohibit purchasing of the fixed
performance or reproduced copies thereof via cable or wireless media or distribution or
presentation thereof to the public by means of other media and transmission thereof to thepublic with the proviso of providing access to the performance on the date and place
designated by the real persons. Distribution and presentation of the performances by means of
transmission to the public shall not infringe dissemination right of the performing artist."
This serves compliance with the second sentence of Article 14.1 of the TRIPS Agreement.
Article 14.2 of the TRIPS Agreement bears the expression:
"Producers of phonograms shall enjoy the right to  authorize or prohibit the direct or indirect
reproduction of their phonograms."
Rights to be exercised by the phonogram producer s fixing a performing work or the similar
sounds for the first time, after being assigned the authorisation of utilisation of the financial rights
from the author or the performing artist are stated within paragraph 1-B of Article 80 of the LawNo. 5846, as amended with Law No. 4630.  The first sub-paragraph of the concerned paragraph bears
the provision that “Rights to permit or prohibit direct or indirect reproduction, distribution,
purchasing, renting out or lending to the public of the fixation conducted pursuant to the consent of
the author and the performing artist shall exclusively be exercised by the phonogram producer.
Producers shall exclusively have the right to permit transmission or re-transmission of the fixationsconducted to the public via media for transmission of signals, sounds and/or images” and serves
compliance to Article 14.2 of the TRIPS Agreement.
The first sentence of Article 14.3 of the TRIPS Agreement bears the provision that
"Broadcasting organizations shall have the right to prohibit the following acts when
undertaken without their authorization: the fixation, the reproduction of fixations, and the re-
broadcasting by wireless means of broadcasts, as well as the communication to the public of
television broadcasts of the same."
Paragraph 1-C of the Law No. 5846, as amended with Law No. 4630 bears the provision that:
"Radio- television corporations shall have the right to permit or prohibit fixation of the
broadcasts, reproducing thereof, re-broadcasting thereof via cable or wireless media and
releasing them in places entrance to which are subject to payment".
This serves compliance with Article 14.3 of the TRIPS Agreement.
Article 14.6 of the TRIPS Agreement bears the provision thatIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 30
"Any Member may, in relation to the rights conferred under paragraphs 1, 2 and 3, provide for
conditions, limitations, exceptions and reservations to the extent permitted by the Rome
Convention. However, the provisions of Article 18 of the Berne Convention (1971) shall also
apply, mutatis mutandis , to the rights of performers and producers of phonograms in
phonograms."
Written consent of neighbouring rights owner and film producer are not necessary for the
cases stated in paragraph 7 of Article 80 of the Law No. 5846, as amended with Law No. 4630.
1. Performing and presentation to the public of the intellectual and artistic works of art
for the purposes of public order, education-training, scientific research or news and without
the aim of profit making.
2. Reproducing of the intellectual and artistic works of art and of radio-television
programs without the aim of broadcasting thereof and profit making, but for the purpose of
individual utilisation.
3. Temporary fixations conducted for a short time by the radio and television
corporations within the frame of their own facilities and for their own broadcasts.
4. Cases stated within Article 30 as 'With Reservation of Public Order', Article 32 as
'Discourses', Article 34 as 'Selections and Compilations for Education and Training',
Article 35 as 'Freedom of Adaptation', Article 43 as 'Payments Relating to the Intellectual and
Artistic Works Broadcasted and/or Transmitted Through Media such as Radio and
Television', Article 46 as 'Exploitation Authority of the State' and Article 47 as 'Becoming a
Public Property' of the concerned Law.
In this respect, provisions of the concerned paragraph serve compliance with Article 14.6 of the
TRIPS Agreement.
12. The documents listed below have been notified by Turkey under Articles 63.2 of the TRIPS
Agreement. Please explain, with reference to specific Articles of the TRIPS Agreement, in what way
each of the following documents purports to supp ort Turkey's compliance with the TRIPS Agreement.
(a) Law No. 3257 on cinema, video and musical works of art (document
IP/N/1/TUR/C/2);
Law on Cinematographic, Video and Musical Works No. 3257 that is still applicable,
comprises regulations regarding the commercial circulation of cinematographic and musical works.
These regulations constitutes a parallelism with the below-mentioned issues stated within the
preamble of the TRIPS Agreement:
- "Expedient standards and principles related to commercial scope, usage and
appropriateness of the proprietary rights over the intellectual products";
- the need for "rules and regulations related to a valid and expedient provision in order
for the enforcement of the proprietary rights over the intellectual products bearing commercial
characteristics, through taking into consideration the differences in national legal systems";
and
- the principle of "accepting that the proprietary rights over the intellectual works are
special rights".IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 31
Furthermore, as stated before, Draft for Amendment of Certain Articles of Law on Intellectual
and Artistic Works has been prepared in order to carry out our obligations originating from
International Conventions.  The text approved by Turkish Grand National Assembly, Commission for
National Education, Culture, Youth and Sports and all of the amendments planned to be carried out inLaw No. 5846 are also related to the Law on Cinematographic, Video and Musical Works.  In this
respect, there is a recommendation of the concerned commission for realization of the immediate
amendment of Law No. 3257 in accordance with these amendments.  Within the frame of this
recommendation, amendment studies concerning Law No. 3257 have been initiated.  As a result of
finalization of these studies, Law No. 3257 shall be fully harmonized with the text of the TRIPS
Agreement.
(b) statute on the professional unions and federation of the authors and owners of the
neighbouring rights and regulations on neighbouring rights to authors of works
(document IP/N/1/TUR/C/3);
The abovementioned legislation has been prepared in accordance with Article 42 of Law
No. 5846, titled "Establishment of Professional Associations" and has a characteristic of supporting
the main principle of "the need for the effective and sufficient protection of the proprietary rights overthe intellectual products".
Since the concerned legislation shall be amended in parallel to the Draft to be negotiated in
General Assembly of Turkish Grand National Assembly and to the amendments carried out in
Articles 42 and 80 of the applicable law, the studies related to this issue are being worked on.
(c) regulations on the marketing of intellectual and artistic work and amendments to the
regulations regarding the marketing of intellectual and artistic works (document
IP/N/1/TUR/C/4);
The concerned regulation became effective pursuant to amended Article 44 and amended
Article 81 of Law No. 5846.  It comprises precautions regarding prevention of transmission of
intellectual and artistic works without consent of authors or rights owners.
The regulation is oriented to meet "the need for the effective and sufficient protection of the
proprietary rights over the intellectual products" emphasized in the preamble of the text of the TRIPS
Agreement and comprises application of technical devices used for the struggle against piracy
mentioned in the "Green Paper" published by Council of Europe in this respect.
Furthermore, studies regarding rearrangement of  the Regulation in parallel to the amendments
planned to be carried out in the Draft and in amended Article 44 and amended Article 81 of the
applicable law.
(d) regulation on inspection of cinema, video and music works of art and regulation on
enterprise licences to be given to the film, video record and cassette administrators
(document IP/N/1/TUR/C/5).
The abovementioned regulations have been prepared in accordance with Law No. 3257.  The
provisions included within these regulations originated from:
- "Expedient standards and principles related to commercial scope, usage and
appropriateness of the proprietary rights over the intellectual products";
- the need for "rules and regulations related to a valid and expedient provision in order
for the enforcement of the proprietary rights over the intellectual products bearing commercialIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 32
characteristics, through taking into consideration the differences in national legal systems";
and constituted a parallelism with
- the principle of "accepting that the proprietary rights over the intellectual works are
special rights", stated within the preamble of the text of the TRIPS Agreement.
Subsequent to the amendments planned to be carried out in Law No. 3257, these regulations
shall be also be amended.
C. TRADEMARKS
13. Where is a provision, corresponding to Article 15.4 of the TRIPS Agreement, to be found in
Decree Law  No. 556 on the protection of trademarks?
We do not have any provisions in line with Article 15.4 of the TRIPS Agreement.
14. Please clarify the meaning of Article 7(g) of Decree Law No. 556 in view of Article 16.3 of
the TRIPS Agreement.
Please see the response following question 15.
15. Please clarify the meaning of  Article 7(i) of Decree Law No. 556 in view of  the provisions of
Article 16.2 of the TRIPS Agreement.
Well-known trademarks are drawn up in the Decree Law by two provisions:
(i) Article 7 (absolute grounds for refusal) states:
"the following signs shall not be registered as a trademark:
a) signs which do not conform with the provisions of Article 5;
b) trademarks identical or confusingly similar with a trademark registered earlier or with
an earlier filing date for registration in respect of an identical or same type of product
or services;
c) trademarks which consist exclusively of signs or indications which serve in trade to
indicate the kind, characteristics, quality, intended purpose, value, geographical
origin, or designate the time of production of the goods or of rendering of the serviceor other characteristics of goods or services;
d) trademarks which consist exclusively of signs and names used to distinguish specific
groups of craftsmen, professionals or tradesmen or have become customary in the
current and established practices of the trade;
e) signs containing the shape of the product which results from the nature of the good,
which is necessary to obtain a technical result or which gives substantial value to the
good;
f) trademarks which are of such a nature as to deceive the public, such as to the nature,
quality, place of production or geographical origin of the goods and services;IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 33
g) trademarks which have not been authorized by the competent authorities and are to be
refused pursuant to Article 6 ter of the Paris Convention;
h) trademarks containing badges, emblems or escutcheons other than those covered by
Article 6 ter of the Paris Convention which have not been authorized by the competent
authorities and are of particular historical and cultural public interest;
i) well known marks according to 6 bis of the Paris Convention, use of which are not
permitted by their owners;
j) trademarks which contain religious symbols;
k) trademarks which are contrary to public policy and to accepted principles of morality.The provisions of (b), (c) and (d) cannot be invoked to refuse the registration of a trademark
which has been used before the registration and has acquired through this usage distinctivecharacter in respect of the goods and services for which it is to be registered."
(ii) Furthermore Article 8 (relative grounds for refusal) clarifies that:
"upon opposition by the proprietor of an application for registration of a trademark or of a
registered trademark, the trademark applied for shall not be registered under following
conditions:
a) If the trademark applied for is identical with a registered trademark or a trademark
that has an earlier application date and the protection is sought for the identical goodsand services;
b) If because of its identity with or similarity to a trademark which has an earlier
application date or a registered trademark and because of the identity or similarity of
the goods and services covered by the trademarks there exists a likelihood of
confusion on the part of the public and the likelihood of confusion includes the
likelihood of association with the registered trademark or with the trademark whichhas an earlier application date.
Upon opposition by the proprietor of a trademark, a trademark shall not be registered where an
agent or representative of the proprietor of the trademark has applied for registration thereof
his own name without the proprietor's consent and without a valid justification.
Upon opposition by the proprietor of a non-registered  trademark or of another sign used in the
course of trade, the trademark applied for shall not be registered provided that:
a) the rights to the sign were acquired prior to the date of filing for registration of the
trademark, or the date of priority claimed for the application for registration;
b) the sign confers on its proprietor the right to prohibit the use of a subsequent
trademark,
A trademark applied for which is identical or similar to a registered trademark or to a
trademark with an earlier filing date may be used for different goods and services.  However,
where in the case of a registered trademark or of a trademark which has an earlier filing date
for registration, the trademark has a reputation and where the use without due cause of
trademark applied for would take unfair advantage of, or be detrimental to the distinctiveIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 34
character or repute of the registered trademark or of the trademark with an earlier application
date, upon opposition by the proprietor of the earlier trademark, the trademark applied for
shall not be registered even to be used for goods and services which are not similar to those
for which the earlier trademark is registered.
Upon opposition by the holder of the relevant right, the trademark applied for shall not be
registered if it contains the name, photograph, copyright, or any industrial property rights of
the third parties.
Upon opposition, trademark applied for which is identical or similar to a collective or a
guarantee mark shall not be registered within three years from the date of expiry of thecollective or of the guarantee mark.
Trademark applied for which is identical or similar and which is to be registered for the
identical or similar goods and services of a trademark which has not been renewed, upon
opposition shall not be registered within two years of the expiry date."
16. Is the presumption required in terms of the second sentence of Article 16.1 of the TRIPS
Agreement inherent in Article 61(b) of Decree Law No. 556 ?
According to Article 9 of the Decree Law:
"the proprietor of a trademark shall be entitled to prevent all third parties not having his
consent from using the trademark as described herewith:
a) use of any sign which is identical with the registered trademark in relation to goods
and services which are identical with those for which the trademark is registered;
b) use of any sign where, because of its identity with or similarity to the registered
trademark and identity or similarity of the goods and services covered by the
registered trademark and sign, there exists a likelihood of confusion on the part of the
public including likelihood of association between the sign and the trademark;
c) use of any sign which is identical with or similar to the registered trademark in
relation to goods or services which are not similar to those for which the trademark is
registered, where the use of that sign without due cause takes unfair advantage of or
is detrimental to the distinctive character or the repute of the registered trademark.
The following may be prohibited under the first paragraph:a) affixing the design to the goods or to the packaging thereof;
b) offering the goods, putting them on the market or stocking them for these purposes
under that sign, or offering or supplying services thereunder;
c) importing or exporting the goods under that sign;
d) using the sign on business papers and in advertising.The rights conferred by a registered trademark shall prevail against third parties from the date
of publication of the registration of the trademark. Compensation may be claimed in respect
of matters arising after the date of publication of a trademark application.  However, the rights
arising from the publication of an application shall be considered within the rights conferredIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 35
by the publication of the registration of a trademark.  The Court may not decide upon the
merits of the case until the registration has been published."
Additionally, Article 61 of the Decree Law rules that:"the following shall be considered infringement of a trademark:a) violations of Article 9;b) use of the same or confusingly similar trademark without the consent of the proprietor
of the trademark;
c) where being aware or should be aware that a mark is plagiarized, to sell, to distribute
or put to commercial use or to import or to keep in possession for these purposes the
goods carrying the infringed trademark;
d) to transfer to third parties or to expand rights acquired by a licensing contract;
e) to participate or to assist or to encourage or to facilitate in whatever form the acts
referred in subparagraphs (a), (b) and (c);
f) to abstain from explaining where and how the product carrying the registered or
confusingly similar trademark was obtained when found in possession."
D. G
EOGRAPHICAL INDICATIONS
17. Please clarify whether or not geographical indications, protected in a WTO Member, will be
protected by Article 56 of the Turkish Competit ion Code (1956) and/or by Articles 15 and 24 of
Turkish Decree Law No. 555.
Protection of a geographical indication under Decree Law No. 555 is only available for
registered geographical indications.  Geographical indications which are not registered in Turkey can
be protected under the Turkish Commercial Law especially by Article 56.
18. Please state if other legal means, for interested (and not registered) parties, preventing the
incorrect or inaccurate use of geographical indications, such as the ones prescribed by Article 22 ofthe TRIPS Agreement, exist.
Such kind of protection of geographical indications against incorrect or inaccurate usage is
also available in Turkish legislation some of them are stated above:
a) Decree Law No. 556 Pertaining to the Protection of Trademarks Article 7(f) "Trademarks
which are of such a nature as to deceive the public, such as to the nature, quality, place of
production or geographical origin of the goods and services"
b) Decree Law No. 555 Pertaining to the Protection of   Geographical Indications:
- Article 5(c) "Names of plant varieties, animal breeds or similar names which
are likely to mislead the public as to the true origin of the product";
- Article 5 (e) "Names which are not protected or their period of protection
have expired or names and signs not allowed to be used by the countriesreferred in Article 2".IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 36
19. Please give examples, if any, of names that have been considered as the common name for a
product even where it relates to a geographical name pursuant to Article 5(b) of Turkish Decree Law
No. 555.
We have not been faced with such a problem.
20. Please give examples, if any, of names that ar e considered as the generic name of the product
contained in a registered sign pursuant to Article 16 of Turkish Decree Law No. 555.
No example.
21. Please clarify if the fact that a registered geographical sign, pursuant to Article 16, second
sentence, of Turkish Decree Law No. 555 may not be the generic name of the product together withArticle 16, first sentence and should be interpreted  as allowing registration of signs which are not
exclusively composed of a generic name.
Yes, it is also possible to register a sign which is not exclusively composed of a generic name.
22. Please give examples, if any, of  application  of registration in case of homonymous names
pursuant to Article 8, last paragraph, of Turkish Decree Law No. 555.
We have not had such an application.
23. Please state references of your law pursuant to Article 30 of Turkish Decree Law No. 555.
In the Turkish legal system, only the judicial bodies have jurisdiction over enforcement
actions.  As in the case of other industrial property legislation, the Decree Law on Geographical
Indications (Article 30) requires the establishment of specialized courts for all type of conflicts
including the challenges against administrative decisions of the Turkish Patent Institute.
Nevertheless, the Supreme Council for Judges and Prosecutors has assigned the competence, for the
time being, to the Commercial Courts in relation to ratione materiae  jurisdiction, without regarding
whether the claim is commercial or not. Concerning criminal actions, it is the General Criminal Court
which has jurisdiction over the act of infringement.
E. I
NDUSTRIAL DESIGNS
24. Please confirm that, according to Turkish law, Article 17 of Decree Law No. 554 extends the
exclusive rights of the owner of a design registration to prevent third parties from not only making,
selling or importing articles bearing or embodying the design as registered but also a design which is
"substantially a copy" thereof.
Under Decree Law No. 554, Article 17 is as follows: The holder of the design right has
exclusive rights with respect to the use of the design.  Third parties, without the consent of the designright holder, cannot produce, put on the market, sell, offer, import, put to commercial use or keep in
stock for this purposes the product in which such a design is incorporated or to which it is applied.
According to Article 48, paragraph (a) without the consent of the design right holder, to
make, produce, put on the market, offer sell, put to use, import or keep in stock for these purposes the
identical or significantly similar design shall be considered as infringement of a design right asstipulated in Article 26.1 of the TRIPS Agreement.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 37
F. PATENTS
25. Please clarify whether or not Article 73(c) of Decree Law No. 551 provides protection of
patents against third parties and offering others the use of a patented process only "where such use is
known or should be known to be prohibited".
Article 73 (c) of Decree Law No. 551 provides protection of patents against third parties and
offering others the use of a patented process.  The phrase "where such use is known or should be
known to be prohibited" is used in the Article to limit the opportunity for the third party to argue that
he didn't know that this was a patented process.  A published patent and/or patent application is
supposed to be known by everybody.
26. In terms of Article 96 to 98 of Decree Law No. 551, a patentee or his licensee is obliged to
"work" a patented invention.  It is understood that the verb "work" means "exploit" in Turkey.  Please
clarify whether or not this would include importation.
In terms of Article 96 to 98 of Decree Law No. 551, a patentee or his licensee is obliged to
"work" a patented invention.  And to make defi nite whether the term "work" includes importation,
Article 73 of Decree Law No. 551 and Article 40 (as amended at December 6th of 1998) of the
Implementing Regulations under Decree-Law 551 will be a guide.
Article 73 says:"The holder of a patent shall benefit from the right it confers without differentiating between
the place of the invention, its field of technology and whether the concerned products areimported or of domestic production.  "Also it is clarified in Article 40 (as amended at
December 6
th of 1998) of the Implementing Regulations under Decree Law No. 551.  This
article accepts that an importation certificate is evidence of "working" the patent.
27. Please explain the divergences of Article 99 to 120 of Decree Law No. 551 with Article 31 of
the TRIPS Agreement.
The following table shows the correspondence between the Articles of Turkish Decree Law
No. 551 and Article 31 of the TRIPS Agreement:
Paragraphs
of Article 31Articles of Turkish Decree Law No. 551
(a) 99, 100 [Also, Articles 109, 110 show that the court considers the individual merits of
the application]
(b) *104 (first paragraph), 108 (first paragraph), 103 (last paragraph). [Also, Article 109
shows that the patentee will always be informed]
(c) *110, also subject to the Draft Law on Integrated Circuits
(d) *114 (first paragraph)
(e) 117 (first paragraph)
(f) 102
(g) 110 (second, third and fourth paragraphs), 118
(h) 114 (last paragraph), 110 (third paragraph)
(i) *118, 110 (last paragraph)
(j) *110, 118, 108
(k) 93IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 38
(l) *99 (second paragraph), 101
(l)(i) 101 (first paragraph)
(l)(ii) 101 (second paragraph)
(l)(iii) 117 (first paragraph)
* Explanations for the table
Although it is not specifically indicated in the Turkish Decree Law No. 551 that the proposed
user has to make efforts to obtain authorization from  the right holder prior to such use, as provided in
Article 31(b) of the TRIPS Agreement, this provision is implicitly covered by Article 104 which
explains mediation. In addition to this, according to general procedural rules, the proposed user isrequired to make efforts to obtain a voluntary licence from the right holder before such use.
In accordance with general principles of law, and the principles of bona fide  behaviour, the
provision of Article 31(c) of the TRIPS Agreement that the scope and duration of such use shall be
limited to the authorized purpose is reflected imp licitly in the third paragraph of Article 110 of
Turkish Decree Law No. 551:
"The scope, the fee, the term of the license, the guarantee produced by the licensee, the date
when the use is to commence and the measures for an effective and serious use of the patent".
The first sentence of Article 114 of Turkish Decree Law No. 551 fully complies with
Article 31(d) of the TRIPS Agreement which provides that such use shall be non-exclusive.
Exceptions to this provision may only be on grounds of public interest as stated in the followingsentences of Article 114:
"Only, the compulsory license on grounds of public interest according to Article 103, may be
granted as an exclusive license.  However, exclusivity shall not be contradictory to the
purpose of the compulsory license and must be necessary for economically valuing the
invention under patent protection".
As regards judicial review as required by Articles 31(i) and (j) of the TRIPS Agreement,
general second instance (appeal) courts are authorized in Turkey.
The references to "dependent patents" in Article 101 of Turkish Decree Law No. 551
correspond to references in the TRIPS Agreement to "first patent" and "second patent".
G. L
AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
28. Please state when the Draft Law on the Protection of Layout-design of Integrated Circuits
will be brought into operation in  Turkey (document IP/N/1/TUR/L/1).
The draft law on the protection of the topographies of integrated circuits are aimed to put into
force as soon possible after having comments of the European Commission in Brussels.  We sent it tothe EC in Brussels in May of 2000, and we are still waiting for their comments.
H. P
ROTECTION OF UNDISCLOSED INFORMATION
29. Please advise what provisions exist in Turkish law which meet the requirements of Article 39
of the TRIPS Agreement relating to the protection of undisclosed information.
Protection of undisclosed information is pr ovided by four pieces of legislation:IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 39
(i) Turkish Commercial Code;
(ii) Regulation on Pharmaceutical Products;
(iii) Civil Servants Act;  and
(iv) Patent Decree.
(i) Protection under the Commercial Code is provided through unfair competition
provisions. Article 57/7-8 Describes the acts incompatible with good faith and the acts which
constitute unfair competition.  Among those:
- Inducing the employees, agents or other assistants and getting them to divulge or
obtain the trading and manufacturing secret s of their employer or of his agents,
- Taking an illicit advantage from trading or manufacturing secrets obtained or learnt
incompatible with good faith or divulging them to others are the acts constitute unfair
competition.
Articles 58-63 provide civil remedies such as prevention of the infringement, compensation
for damages for those unfair competition related to inter alia undisclosed information.
Additionally Article 64 stipulates criminal sanctions within the form of imprisonment and/orfine against unfair competition related to undisclosed information.
(ii) Article 36 of the Regulation on Pharmaceutical Products brings responsibility on
Ministry of Health not to divulge the information disclosed by the applicant during the
application of marketing permission.
(iii) Additionally Civil Servants Act Article 31 brings responsibility on civil servants
employed in the Ministries and in the public institutions not to divulge secret business
information related to their service.
Infringing acts against those last two legislation brings responsibility of the public
administration in accordance with Article 125 of the Constitution. (Article stipulates that
recourse to judicial review shall be available against all actions and transactions of publicadministrations. ) Through those judicial review the public administration may be obliged to
pay compensation in the Administrative Court to the persons whose secret information
divulged by the civil servants in the administration.
(iv) Article 83/3 of Patent Decree states that information and test results should be kept
confidential by the authorities (Turkish Patent Institute) when they are issuing licenses for
manufacture
I. C
ONTROL OF ANTI-COMPETITIVE PRACTICES IN CONTRACTUAL LICENCES
30. Apart from the provisions of Article 93 of Decree Law No 551 on the protection of patent
rights, please advise what provisions exist in Turkish law along the lines of Article 40.2 of the TRIPS
Agreement.
Apart from Article 93 of Patent Decree No. 551, the provisions on anti-competitive practices
in contractual licences are provided in the Act on the Protection of Competition No. 4054 which hasrules along the lines of Article 40.2 of the TRIPS Agreement.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 40
The Act prohibits agreements, decisions and concerted practices in restraint of competition,
and abuse of dominant position.  The Competition Board has given competence to issue block
exemption circulars on restraint of competition.  The Board is in the preparation of issuing a circular
on technology transfer.  The Board has not yet decision on intellectual property contract clauses.
J. ENFORCEMENT
31. Please provide a copy of Turkish Law No. 4128 to which reference is made on pages 15 and
16 of document IP/N/1/TUR/2 and please explain what  provisions exist in Turkish law relating to the
enforcement of intellectual property rights as set out, not only in Article 41 of the TRIPS Agreement,
but also in Articles 42 to 62 with particular reference to:
(a) copyright and related rights apart from  part Five of Law No. 5846 (document
IP/N/1/TUR/C/1);
(b) trademarks apart from part VIII of Decr ee Law No. 556 (docum ent IP/N/1/TUR/T/1);
(c) geographical indications;
(d) industrial designs apart from part VI of Decree Law No. 554 (document
IP/N/1/TUR/D/1);
(e) patents apart from part X, sections II to IV, of Decree Law No. 551
(documentIP/N/1/TUR/P/1);
(f) layout-designs (topographies) of integrated circuits apart from Articles 27 to 33, 35
to 37, 41 and 42 of the Draft Law on the Protection of Layout-Designs of Integrated
Circuits (document IP/N/1/TUR/L/1);
(g) protection of undisclosed Information;  and
(h) control of anti-competitive practices in contractual licences.
Turkish Law No. 4128 has been introduced the criminal sanctions on Patent, Trademark,
Geographical Indications and Designs Decrees.  All those Decrees have been prepared as a
consolidated text including Turkish Law No. 4128.
Apart from the provisions mentioned in a, b, c, d, e and f above, and also on the matters of "g"
and "h" the related provisions on enforcement which are in harmony with Articles 41 to 62 of the
TRIPS Agreement3 may be found in:
- The Act of Civil Procedure,
- The Act of Criminal Procedure,
- Turkish Criminal Code,
- Turkish Commercial Code,
- The Contract Law,- The Civil Servants Act,
- The Regulation on Pharmaceutical Products,
                                                     
3 They are all mentioned in IP/N/1/TUR/2 and explained in Turkey's responses to the Checklist of
Issues on Enforcement (IP/N/6/TUR/1).IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 41
- The Customs Code,
- The Customs Regulation,
- The Act on the Protection of Competition.
The following paragraphs respond to the questions by taking into consideration the relevant
Articles of the TRIPS Agreement:
Article 41 of the TRIPS Agreement
Remedies described in industrial property legislation is deterrent (1-4 years imprisonment and
300 million TL to 1 billion TL and closing down the business premises and prevention of commercial
activities at least for one year).  The Amending Draft Law of Intellectual and Artistic Works Act
follows the same path, and rise of sanctions is in the agenda of Parliament the (Article 41.1 of the
TRIPS Agreement).
In relation to Article 41.2 of the TRIPS Agreement, the Turkish Constitution stipulates in
Article 141 that "Cases should be dealt with least possible cost and should last expeditiously."  The
duration for a final decision in criminal cases is between 272-496 days in criminal cases and it is less
than one year for civil cases.
The petition charges, the hearing charges (which is taken in case of causing the suspension of
the hearing) and decision charge4 are not costly (Article 41.2 of the TRIPS Agreement).
Decision on the merit of the case is in writing and reasoned and it is based on the evidence in
respect of which parties were offered the opportunity to be heard in accordance with Article 382-393
of the Civil Procedural Law and also Article 141/3 of the Turkish Constitution (Article 41.3 of the
TRIPS Agreement).
The review procedure by a judicial authority of final administrative decisions is a
constitutional rule expressed as a principle in Article 125/1 ("Recourse to judicial review shall be
available against all actions and transactions of administration.") of the Constitution, and found its
implementing provisions through Law on Administrative Procedure No. 2577, Law on Council of
State No. 2575 and the Law on the Establishment of Provincial Administrative Courts, AdministrativeCourts and Tax Courts.
Furthermore all the initial judicial decisions of the courts are subject to review from the point
of law and point of fact in accordance with Articles 427-444 of the Act of Civil Procedure and also in
accordance with Articles 305-326 of the Act of Criminal Procedure (Article 41.4 of the TRIPS
Agreement).
Article 42 of the TRIPS Agreement
To start an action for a civil case the plaintiff must file a "petition of the case
(Articles 178-186 of the Act on Civil Procedure)".  This petition must include:
- Statement of facts;
- A summary of the legal basis of the action;
- A statement of claims (what remedy he seeks); and
                                                     
4 For the actual amounts see Turkey's answer to question 25 of the Checklist of Issues on Enforcement,
(document IP/N/6/TUR/1).IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 42
- An indication of the time allowed the defendant to answer (this must be at least 10
days),
After sending this petition to defendant through court's clerk, the defendant should submit a
petition of reply in the prescribed time in the same channel (Article 195-202 of the Act on CivilProcedure).
Following the exchange of petitions, trial judge calls the parties and listens to them, and
decides about the evidence, and if there is a need  for further evidence for the proof asks for this
(Articles 213-221 of the Act on Civil Procedure).
In accordance with Article 59 of the Act on Civil Procedure "Each person who has the
"capacity to act" may bring an action and follow the suit either by himself directly or by a
representative". According to Article 219 of the same Act the judge (either ex officio  or in accordance
with the claim of a party) may invite the parties to  the hearing to express their view orally about the
evidence. Otherwise parties always are informed through the court about each others ′ evidence, and
are given the chance to express their view in a written form.  If they want to  be heard orally then the
abovementioned procedure (Article 219) applies.  Therefore there is no overly burdensome
requirement concerning mandatory personal appearance.
For the protection of confidential information during court procedure see Turkey's answer 
to question 4 of the Checklist of Issues  on Enforcement (document IP/N/6/TUR/1).
Article 43 of the TRIPS Agreement
There is no general rule in the Act of Civil Procedure except some special provisions to
produce evidence which lies within the control of opposite party.  One of those provisions is about thedocuments as an evident within the control of opposite party.  In such a case, judge has the authority
to order delivery of the documents which has the effect to proof of the case (Article 330 of the said
Act).  If the party does not meet the said requirement without a good reason, the court may make
affirmative or negative determinations on the basis of the claimant ′s information concerning the
content of the document (Article 332 of the Act on Civil Procedure).
For the other evidence but documents, the party may claim the determination of the evidence
from the court competent on the merit of the case or  bring an action for determination of the evidence
from the civil peace courts (Articles 368-374 of the Act on Civil Procedure).
Article 44 of the TRIPS Agreement
General principles of injunctions are introduced in the Articles 101-113 of the Act on Civil
Procedure.
Injunctions may be claimed before or during the proceedings on the merit of the case.
The purpose of the injunction is:
- cessation and prevention of the infringing acts,
- provisional seizure of the infringing goods.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 43
Article 45 of the TRIPS Agreement
The general principles of paying damages are stated in Article 41 of the Turkish Act of
Obligations.  Damages actions for compensation require the infringer having acted intentionally or
negligently.
Pursuant to Articles 413-426 of the Act on Civil Procedure, the party who lost the case must
pay the cost (Article 417) which includes attorney's fees (Article 423/5), unless the judge decides
otherwise.
Article 46 of the TRIPS Agreement
Apart from the Articles 137, 49, 25, 62 of Patent, Design, Geographical Indications and
Trademarks Decrees respectively, and Article 79 of the Intellectual and Artistic Works Act on the
question of destruction and confiscation of the infringing goods and materials;  Article 36 of theTurkish Criminal Code states the seizure and confiscation of infringing goods in case of conviction
judgements.
Article 47 of the TRIPS Agreement
The specific provisions on the right of information started in Article 47 of the TRIPS
Agreement have been expressed only in industrial pr operty legislation of Turkey.  Please see Turkey's
answer to question 3 of the Checklist of Issues on Enforcement (document IP/N/6/TUR/1).
Article 48 of the TRIPS Agreement
In Article 110 of the Act on Civil Procedure the plaintiff who claims injunction should pay a
security to meet likely damage to defendant.  On the other hand a bad intentioned plaintiff to bring
action may be imposed an administrative fine by the court in accordance with Article 422 of the Acton Civil Procedure.
Furthermore as a general principle of Turkish Constitution (Article 125), the State and public
authorities are liable any damage caused by defective functioning of their services (mal
administration).
In relation to judges and prosecutors, their responsibility is also possible provided they are
intentionally in breach of their official duties.
Article 50 of the TRIPS Agreement
The provisional measures are also governed in Articles 101-113 of the Act on Civil Procedure
mentioned under title D above.
Pursuant to Article 105 of the Act on Civil Pro cedure, where there is an imminent situation
which requires the protection of the plaintiff's interest at once, the court may decide by a ruling
without making an oral hearing and without listening to the opposing party ( inaudita altera parte) .
Nevertheless this situation applies only to the claims on provisional measures.  Ex parte  rulings are
subject to objection.  However the objection shall not prevent execution unless otherwise decided by
the court (Article 107 of the Act on Civil Procedure).
Concerning parts (g) and (h) of question 31, please see the answers to questions 29 and 30.
Moreover, the Customs Law contains the following Articles related to Articles 51-60 of the
TRIPS Agreement:IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 44
Article 51 of the TRIPS Agreement - Suspension of Release by Customs Authorities
Article 57 of Customs Law No. 4458 provides a procedure to enable the right holder or his
representative to lodge an application for the suspen sion by customs authorities of the release into free
circulation of counterfeit trademark or pirated copyright goods in accordance with Article 51 of theAgreement.
Article 52 of the TRIPS Agreement
The implementing rules of the procedure provided by Article 57 of the Law are set out by
Regulation laying down the implementing provisions of Customs Law No. 4458. The Regulation
regulates, inter alia , the form of application in Article 178 in compliance with Article 52 of the
Agreement.
Article 53 of the TRIPS Agreement
According to Article 178 of the said Regulation, right holder or his representative shall
deposit to customs cashier the amount corresponding to the administrative costs and fees for analysis,
expertise and overtime work arisen regarding the application. Customs authorities may also request
from the applicant a guarantee corresponding to the CIF value of the goods in order to secure therights of the importer or public where they deem appropriate for the case.
Article 54 of the TRIPS Agreement
Following consideration on the application, customs administration shall take a justified
decision, on both suspension or rejection, and shall notify it to the importer or the right holder or hisrepresentative within the following working day.
Article 55 of the TRIPS Agreement
Articles 180 and 181 provide the term following the notification of the suspensive decision
taken by customs authorities to the right holder.  If customs authorities have not been informed,
within the term of ten days as specified under this Article, that legal proceedings leading to a decisionon the merits of the case have been initiated, or that the duly empowered authority has taken
precautionary measures, the customs procedure shall be carried out in accordance with the request of
the declarant and the suspension shall be abolished.
Article 57 of the TRIPS Agreement
According to Article 180 of the Regulation, the customs authorities shall, upon request, entitle
the right holder or his representative to examine the goods in question or to take sample thereoffollowing the notification of the suspensive decision.  They shall, upon request, give the right holder
such information as the owner's and consignee's name or trade name and address, saving confidential
information or commercial secrets or information involving in any infringement to the rights on
commercial or industrial designs.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 45
Article 58 of the TRIPS Agreement
Customs authorities may at any time seek from the right holder any information that may
assist them to exercise their powers according to general provisions.5  (Article 58(a) of the TRIPS
Agreement).
Article 57 of the Law provides customs authorities the power to carry out suspension
procedure, where solid evidence is available, by their own initiative where goods in question complies
with the description of the counterfeit trademark or  pirated copyright goods.  According to Article 180
of the Regulation, the customs authorities shall fulfil the same formalities, with those applied to goods
suspended upon application, for the goods suspended by their own initiative.  (Article 58(b) of the
TRIPS Agreement).
According to Article 179 of the Regulation, where the goods in question have been released
for free circulation before the application, concerning an alleged infringement of intellectual or
industrial property rights, is accepted, this acceptance by customs administrations shall not give right
to the right holder to claim indemnities on the grounds that the goods in question have been releasedwithout proper examinations being performed. In the case the suspension of the customs procedure by
customs administration within the framework of combat against counterfeit trademark or pirated
goods proves to be useful or harmful to the persons concerned, the authorities of the customs
administration shall not be liable against these persons.  (Article 58(c) of the TRIPS Agreement).
Article 59 of the TRIPS Agreement
Remedies against piracy and counterfeiting of trademarks provided by customs legislation are
already recapitulated under the response by Turkey to question 6 posed by Switzerland.
Article 60 of the TRIPS Agreement
Article 57(6) of Customs Law provides that the Article shall not cover the personal goods and
gifts brought by passengers and postal consignm ents of non-commercial nature. In addition, these
provisions shall not apply to the goods which are, without the consent of the right holder, brought in
the customs territory of Turkey and released into free circulation or re-exported or imported with a
conditional relief, or exported without the consent of the right holder even though they are permitted
to be produced in Turkey or to be produced or to bear a trademark within different conditions fromthose allowed by the right holder.  (Article 176 of the Regulation).  Please see Turkey's response to
question 15 of the Checklist of Issues on Enforcement (document IP/N/6/TUR/1).
                                                     
5 Article 11 of the Customs Law No.4458 - Only for the purposes of applying customs legislation, any
person directly or indirectly involved in the custom s operations concerned shall provide the Undersecretariat of
Customs or the customs administrations with all the requisite documents, information and assistance at theirrequest and by any time-limit prescribedIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 46
IV. REPLIES TO QUESTIONS POSED BY JAPAN
A. COPYRIGHT AND RELATED RIGHTS
1. Please explain exceptions or exemptions of the national treatment and most-favoured-nation
treatment under the Copyright and Neighbouring Rights Law, if any, as permitted in Articles 3 and 4
of the TRIPS Agreement.
In accordance with Article 88 of Law On Intellectual And Artistic Works No. 5846, these
provisions of law shall be applied to:
(1) All kinds of artistic works that are presented to public for the first time in Turkey,
those in Turkey but not yet presented to public and all letters and pictures in Turkey, withoutrecourse to the nationality of the author;
(2) Artistic works of people of Turkish nationality that are either not presented to public
within Turkey or those presented to public for the first time outside Turkey;
(3) All artistic works belonging to foreigners not yet presented to public or presented to
public for the first time outside Turkey; with the proviso of existence of due provisions within
an International Agreement to which Republic of Turkey is a party.
Exemptions within provisions of the first and third paragraphs of this article by Board of
Ministers may be resolved, provided that the country to which the author is a citizen protects the
rights of Turkish authors to a certain degree or that an International Ag reement permits exemptions
and limitations related to the issues depending upon the authors of foreign artistic works.
Second paragraph of Article 82 of the same law titled "The Scope and Terms of Neighbouring
Rights" governs the provision stating "Provisions of this law relating to neighbouring rights shall also
be applied to performing artists, producers and radio-television institutions protected in accordance
with provisions of international agreements to which Republic of Turkey is a party".
In this respect, first, second and third sentences of Article 88 of the applicable law and second
paragraph of Article 82 are in harmony with first paragraph, Article 3 titled "National Treatment" of
the TRIPS Agreement.
In this respect, the last paragraph of Article 88 of the applicable law is in accordance with
Article 4 titled "Most-Favoured-Nation Treatment" of the TRIPS Agreement.
B. P
ATENTS
2. Please explain how Article 73 of Decree Law No. 551 on the Protection of Patent Rights
complies with Article 28 of the TRIPS Agreement which provides that a patent shall confer exclusive
rights to prevent third parties from the acts of offering for sale a patented product or a product
obtained directly by a patented process.
In the Article 73 of Decree Law No. 551, the paragraph (a) states that, the patent prevents
third parties from the acts of selling the patented product.  Also Article 136 describes the acts,
constituting infringement of rights conferred by a patent: "selling" is considered as an infringement of
rights.  In both Articles, the act of "selling" or "sale" per se  includes the act of "offering for sale".  In
the last paragraph of this Article, namely paragraph (d), the act of "offering for sale" is prohibited to
the third parties in case of a products directly obtained by the patented procedure.  In the practice ofIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 47
patent procedure, both the acts of "offering for sale" and "sale" of a patented product or products
directly obtained from a patented process are being handled in the same way according to the
provisions described in Article 73.  In the case of any revision of Decree Law No. 551, this article is
considered to be revised in a such way that, both paragraphs (a) and (d) include the terms "sale" and"offering for sale" to prevent such confusions.
V. REPLIES TO QUESTIONS POSED BY SWITZERLAND
A. P
ATENTS
1. Are all categories of products subject to patent protection under your law or are there any
exceptions. If so, please explain in detail what these exceptions are and how they apply.
Yes, all categories of products are subject to patent protection, as provided in Article 5 of
Turkish Decree Law No. 551, inventions which are novel, surpass the state of the art and are
applicable in industry, are patentable.  Non-patentable subject matter and inventions are explained in
Article 6 of Decree Law No. 551.
"The following, not being inventions as of their nature, shall remain outside the scope of this
present Decree Law:
a) Discoveries, scientific theories, mathematical methods;
b) Plans, methods, schemes/rules for performing mental acts, for conducting
business/trading activity, and for playing games;
c) Literary and artistic works, scientific works, creations having an esthetic
characteristic, computer programs;
d) Methods involving no technical aspect, for collecting, arranging, offering/presenting
and transmitting information/data;
e) Methods of diagnosis, therapy and surgery applying to human or animal body.The provision under the paragraph one, subparagraph (e) of this present Article, shall apply
neither to the products and compositions ( per se ) used in connection with these methods nor to their
process of manufacturing.
Patent shall not be granted for inventions in respect of following subject-matter:
(a) Inventions whose subject matter is contrary to the public order or to morality as is
generally accepted;
(b) Plant and animal varieties/species or processes for breeding/plant or animal
varieties/species, based mainly on biological grounds".
2. Does your law, in accordance with Article 27.1 in combination with Article 31 of the TRIPS
Agreement, recognize importati on as "working a patent" (and therefore preclude compulsory
licence)?
Yes, the Turkish Decree-Law recognizes importation as "working" a patent.  As provided in
Article 73:  "The holder of a patent shall benefit from the right it confers without differentiatingIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 48
between the place of the invention, its field of technology and whether the concerned products are
imported or of domestic production...".
The obligation to use or work the patent is also provided for in Article 96, which is clarified
in Article 40 (amended at 6 December 1998) of The Implementing Regulations Under The
Decree-Law clarify the object; it accepts importation certificate as an evidence of "working" of the
patent.
3. Does your law make compulsory licences subject to the conditions enumerated in Article 31
of the TRIPS Agreement?  If exceptions are provided for, please describe in detail what these
exceptions are and how they apply in your law.
Yes.  The following table shows the correspondence between Articles of Turkish Decree
Law No. 551 with Article 31 of the TRIPS Agreement:
Paragraphs of
Article 31Articles of Turkish Decree Law No. 551
(a) 99, 100 (Also, Article 109, 110 show that the court considers the individual merits of
the application)
(b)* 104 (first paragraph), 108 (first paragraph), 103 (last paragraph) (Also, Article 109
shows that the patentee will always be informed)
(c)* 110, also subject to The Draft Law of Integrated Circuits
(d)* 114 (first paragraph)
(e) 117 (first paragraph)
(f) 102
(g) 110 (second, third and forth paragraph), 118
(h) 114 (last paragraph), 110 (third paragraph)
(i)* 118, 110 (last paragraph)
(j)* 110, 118, 108
(k) 93
(l)* 99 (second paragraph), 101
(l)(i) 101 (first paragraph)
(l)(ii) 101 (second paragraph)
(l)(iii) 117 (first paragraph)
*Explanations of the Table
Although there is not a specifically indica ted act in the Turkish Decree Law No. 551 about
that the proposed user has made efforts to obtain authorization from the right holder prior such use,
as provided in Article 31(b) of the TRIPS Agreemen t, this provision is implicitly covered by the
Article 104 which explains mediation.  In addition to this, in according to general procedural rules,
the proposed user is required make efforts to obtain a voluntary licence from the rights holder before
such use.
In accordance with general principles of law, and the principles of bona fide  behavior. The
provision of Article 31(c) of the TRIPS Agreement that "the scope and duration of such use shall be
limited to the authorized purpose" is reflected implicitly in the third paragraph of Article 110 of
Turkish Decree Law No. 551:  "The scope, the fee, the term of the license, the guarantee produced by
the licensee, the date when the use is to commence and the measures for an effective and serious use
of the patent."IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 49
First sentence of Article 114 of Turkish Decree Law No. 551 is fully complied with
Article 31(d) of the TRIPS Agreement which describes that such use shall be non-exclusive.  The
exception of this provision may only be on grounds of public interest as stated in the followingsentences of Article 114:  "Only, the compulsory license on grounds of public interest according to
Article 103, may be granted as an exclusive license.  However, exclusivity shall not be contradictory
to the purpose of compulsory license and must be necessary for economically valorizing the invention
under patent protection."
As regards judicial review as required by Article 31(i) and (j) of the TRIPS Agreement
general second instance (appeal) courts are authorized in Turkey.
The references to "dependent patents" stated in the Article 101 of Turkish Decree Law
No. 551 has the implicit meaning like the wording of the TRIPS Agreement ("first patent" and
"second patent").
Follow-up question:
Article 31(c) of the TRIPS Agreement requires that the scope and duration of use without the
authorization of the right holder shall be limited to the purpose for which it was authorized.  You
explain that in the Turkish legislation, this TRIPS requirement is complied with by general principles
of law and the principles of bona fide behaviour.  Could you please explain in more detail what
general principles will be applied in order to determine the limitations of the scope and duration of
such use and what will be considered bona fide behaviour in this context?
Article 31 of TRIPS Agreement requires that the scope and duration of use without the
authorization of the right holder shall be limited to the purpose for which it was authorized.  The
corresponding Article 110 of Turkish Patent decree states that the court decision to grant the
compulsory licence shall include,
/g167 the scope and the term of licence,
/g167 the fee payable,
/g167 the guarantee provided by the licence,
/g167 the date on which working is to commence, and
/g167 the measures to ensure effective working of the patent.
There is no doubt that the guiding principles for the court to decide on those shall be found
firstly within the scope of other provisions of the Patent Decree. Such as the provisions of "dependentpatents", which constitute one of the grounds for compulsory licence.  If there is no guiding rule in the
Patent Decree than it is the general principles of law inter alia which provide guidance to the judge.
This approach is emphasised in the first Article of the Turkish Civil Code.
"Proportionality" is one of the main general principles of law when the judge decides on the
scope and the duration of such a compulsory use and it is limited to the purpose for which it was
authorised. For example, in a compulsory licence decision based on dependent patents, the court
should not grant longer duration than of the actual term of patent (which was not lapsed yet) of the
person who claims dependent patent. Principle of bona fide  behaviour is another principle that we
mentioned in our initial answer. This principle mainly addresses to the parties to guide them on acting
good faith when they are using their rights and committing their obligations. Nevertheless,proportionality principle meets the requirement expressed in Article 31(c) rather than the principle of
bona fide  behaviour.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 50
4. Does your legislation provide for the principal of the reversal of burden of proof in a process
patent litigation?  Please name the relevant law and explain the relevant sections.
Yes.  The second and third paragraphs of Article 84 of Turkish Decree Law No. 551
completely complies with the provisions of Arti cle 34 of the TRIPS Agreement.  With regard to
Article 84, "...where a patent concerns a process fo r the manufacture of new products or substances,
unless proof to the contrary, any product or substance having the same properties shall be deemed to
have been obtained by using the patented process.  The burden of proof lies with the persons claiming
the contrary."
In addition to this, with regard to Article 84 of the Turkish Decree-Law, where a product, for
which there is a patent in respect of its manufacturing process, is imported into Turkey, the patenteeshall, in respect of the imported products benefit from the same rights as those recognized to him
under this present Decree-Law for the obtention/manufacture of said product in Turkey.
Where a patent concerns a process for the manufacture of new products or substances, unless
proof to the contrary, any product or substance having the same properties shall be deemed to havebeen obtained by using the patented process.  The burden of proof lies with the persons claiming the
contrary.
In case of legal proceedings regarding such a claim to the contrary as provided under
paragraph two of this present Article, the legitimate interests of the defendant, in keeping undisclosed
his manufacturing and business/trade secrets, shall be taken into consideration.
B. P
ROTECTION OF UNDISCLOSED INFORMATION
5. Please explain in detail if your legislation ensures that undisclosed and confidential test data
or other data submitted by an applicant to the responsible State agency in the procedure for market
authorization of a pharmaceutical or of an agricultural chemical product is protected against
disclosure and against unfair commercial use by a competitor, for example by prohibiting a secondapplicant from relying on, or from referring to the original data of the first applicant, when applying
subsequently for market authorization for his own product.  Does your legislation provide for
exceptions to this?  If yes under what conditions would such exceptions apply?
Protection of undisclosed information is pr ovided by four pieces of legislation:
(i) Turkish Commercial Code
(ii) Regulation on Pharmaceutical Products(iii) Civil Servants Act
(iv) Patent Decree
(i) Protection under the Commercial Code is provided through unfair competition
provisions. Article 57/7-8 Describes the acts incompatible with good faith and the acts whichconstitute unfair competition.  Among those:
- Deducing the employees, agents or other assistants and getting them to divulge or
obtain the trading and manufacturing secret s of their employer or of his agents;
- Taking an illicit advantage from trading or manufacturing secrets obtained or learnt
incompatible with good faith or divulging them to others are the acts constitute unfair
competition.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 51
Articles 58-63 provide civil remedies such as prevention of the infringement, compensation
for damages for those unfair competition related to inter alia undisclosed information.
Additionally Article 64 stipulates criminal sanctions within the form of imprisonment and/or
fine against unfair competition related to undisclosed information.
(ii) Article 36 of the Regulation on Pharmaceutical Products brings responsibility on
Ministry of Health not to divulge the information disclosed by the applicant during the
application of marketing permission.
(iii) Additionally Civil Servants Act Article 31 brings responsibility on civil servants
employed in the Ministries and in the public institutions not to divulge secret businessinformation related to their service.
Infringing acts against those last two legislation brings responsibility of the public
administration in accordance with Article 125 of the Constitution.  (This article stipulates that
recourse to judicial review shall be available against all actions and transactions of public
administrations .)  Through those judicial review the public administration may be obliged to
pay compensation in the Administrative Court to the persons whose secret information
divulged by the civil servants in the administration.
(iv) Article 83/3 of Patent Decree states that information and test results should be kept
confidential by the authorities (Turkish Patent Institute) when they are issuing licences formanufacture.
Follow-up question:
Referring to the issue of unfair commercial use of data submitted by an applicant to the
responsible authorities in the procedure for market authorization of a pharmaceutical or an
agrochemical product, you mention that Article 36 of the Regulation on Pharmaceutical Productsholds the Ministry of Health responsible not to di vulge the information and the test data submitted by
an applicant during the application for the marketing permission.  Please confirm that such
information will not be relied upon by the Ministry for another party's request for marketing approval
of an equivalent product and cannot either be relied upon by a second applicant after the first
applicant has actually received marketing authorization.  Please indicate also whether your
legislation provides for a time-limit before the expir ation of which the information and the test data of
the first applicant will not be relied upon for the marketing approval of a second equivalent product.
Trade related intellectual property rights are protected in accordance with the below-
mentioned related instruments of the Turkish legislation. Moreover, relevant departments of the
Ministry of Health are obliged to comply with the TRIPS Agreement.
(i) Regulation for the Registration of Medical Pharmaceutical Products (Official Gazette
No. 22218 of 2 March 1995).
Under the title concerning "confidence":  Article 36: The protection of confidence of
the information and data submitted by an applicant during the application for the
registration is under the responsibility of the Ministry of Health.
(ii) Protection of patent rights (Official Gazette No. 22326 of 27 June 1995).
Article 36: Liability of confidence.Article 72: Patent duration.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 52
Article 74: The usage of patent elements by the third parties.
Article 83: The content of protection, which is strengthened by patent.
(iii) Protection of Industrial Designs (Official Gazette No. 22326 of 27 June 1995).
(iv) Protection of Trademarks (Official Gazette of 24 June 1995).(v) The relevant articles of Turkish Law of Commerce for protection against unfair
competition.
The subject of well-known trademarks is under the responsibility of the Turkish Patent
Institute and according to the Paris Agreement, foreign trademarks are also under protection in
Turkey.
Data exclusivity and marketing exclusivity are not covered by Turkish legislation, as it is the
case in the EU and the US.  Only patented product is protected by the Patent Law until the due date ofthe patent expires.  In some European countries data exclusivity is applied in a more rigid way than
OECD members.
The disclosure of the information and the data, submitted by the first party to obtain
marketing approval of pharmaceutical products is strictly forbidden, while examining the second
party's application.
This is evaluated as essential similar products, so that bioequivalance data and clinical,
pharmacological and toxicological data are requested upon applications.  There is not a time limit for
the second application.  However patented products are under protection through patent duration.
As for use without authorisation of the right holder, Article 36 of the Registration Regulation
is under protection in accordance with the TRIPS Agreement.
As regards protection of undisclosed information, unfair commercial use is prohibited by the
relevant provisions of Turkish Law of Commerce on unfair competition.
C. E
NFORCEMENT
6. What remedies does your country foresee against piracy and counterfeiting of trademarks ?
Remedies against piracy6 and counterfeiting of trademarks may be described in two folds:
(i) Remedies described in the Trademark Decree 556;  and
(ii) Remedy described in the Customs Law 4458  and its implementing Regulation in
relation to suspension of the release of pirated and counterfeited goods.
(i) Remedies described in the Trademark Decree 556, stipulates very high sanctions
including prison term between 2 and 4 years and a fine between 600 million and one billionTurkish Lira in addition to closing down the business premises and prevention of commercial
activities at least for one year.
                                                     
6 For the remedies against piracy of other intellectual property goods please see Turkey's answer to
question 24 in the Checklist Issues on Enforcement (document IP/N/6/TUR/1).IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 53
The Decree also stipulates the seizure, forfeiture and destruction of infringing goods and
materials, and implements for their production.
(ii) Remedies against piracy and counterfeiting of trademarks provided by customs
legislation (Customs Law No. 4458 and Implem enting provisions of Customs Law No. 4458)
are recapitulated below.
In general, the goods of which customs procedures have been suspended may be destroyed, in
accordance with the decision of the duly empowered j udicial authority and the principles of disposal
procedure, or may be disposed of by being sold ensuring their essential characters altered.
(Article 57(5) of Customs Law No. 4458). Good s found by the duly empowered court to be
counterfeit or pirated are subject, without prejudice to any explicit measure ordered, to destruction, or
release for their owner in altered state, or leaving to The Exchequer.  Below is the procedure:
(a) Where decided to destroy them, the goods shall be destroyed in accordance with the
disposal procedure and the costs shall be borne by the owner of the goods.
(b) Where decided to release the goods for their owner having altered their
characteristics, the characteristics of the goods shall be altered insofar as to constitute
a deterrent to turn it into unaltered state. It shall not be regarded as sufficient for
altering the characteristics of the goods to remove the trademarks affixed on them.The expenses for these formalities shall be borne by the owner of the goods.  Where
subjecting the altered goods to a customs procedure, Article 64 of the Customs Law,
which rules invalidation of a customs declaration in error and destruction of damaged
goods, shall apply as the case may be.  Requests for re-exporting the goods in their
unaltered state shall be rejected, as set out in Article 59 of the Agreement.
Where decided to leave the counterfeit or pirated goods to the Exchequer, the goods shall be
altered in accordance with the paragraph (b) prior to applying the provisions of the disposal
procedure.
VI. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
A. G
ENERAL
1. With respect to each form of intellectual property covered by Part II of the TRIPS Agreement,
including plant variety protection, please explain th e manner in which laws of Turkey ensure that
nationals of other WTO Members receive national treatment and most-favoured-nation treatment as
required by Articles 3 and 4 of the TRIPS Agreement.  Please cite to the relevant provisions of law.
Related with trademark, patent, industrial design, geographical indications and topographies
of integrated circuits:  the protection conferred by the Laws are available to natural and legal persons
who are domiciled or who have industrial or commer cial establishments within the territory of the
Turkish Republic, or to the persons who have application rights resulting from the terms of the Paris
or Bern Conventions or the Agreement Establishing World Trade Organization.
Natural or legal persons other than those referred in the first paragraph of this Article, who are
nationals of states which accord legal and de facto protection to the nationals of the Turkish Republic
shall enjoy according to the reciprocity principles of industrial property rights in Turkey ".IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 54
Also the Laws state that "where the provisions of International Agreements which have
entered into force as provided by the Laws of the Turkish Republic afford preferable provisions than
the Laws, may request treatment according to the preferable provisions".
Related with copyrights:  In accordance with Article 88 of Law On Intellectual And Artistic
Works No. 5846, these provisions of law shall be applied to:
1. All kinds of artistic works that are presented to public for the first time in Turkey,
those placed in Turkey but not yet presented to public and all letters and pictures in
Turkey, without recourse to the nationality of the author;
2. Artistic works of people of Turkish nationality that are either not presented to public
within Turkey or those presented to public for the first time outside Turkey;
3. All artistic works belonging to foreigners not yet presented to public or presented to
public for the first time outside Turkey; with the proviso of existence of dueprovisions within an International Agreement to which Republic of Turkey is a party.
Exemptions within provisions of the first and third paragraphs of this article by Board of
Ministers may be resolved, provided that the country of which the author is a citizen protects the
rights of Turkish authors to a certain degree or that an International Ag reement permits exemptions
and limitations related to the issues depending upon the authors of foreign artistic works.
Second paragraph of Article 82 of the same law titled "The Scope and Terms of Neighbouring
Rights" governs the provision stating "Provisions of this law relating to neighbouring rights shall also
be applied to performing artists, producers and radio-television institutions protected in accordancewith provisions of international agreements to which Republic of Turkey is a party".
In this respect, first, second and third sentences of Article 88 of the applicable law and second
paragraph of Article 82 are in harmony with first paragraph, Article 3 titled "National Treatments" of
the TRIPS Agreement.
Also, last paragraph of Article 88 of the applicable law is in accordance with Article 4 titled
"Most-Favoured-Nation Treatment" of the TRIPS Agreement.
B. C
OPYRIGHT AND RELATED RIGHTS
2. We understand that draft copyright legislation is being prepared to bring Turkey's copyright
and neighbouring rights regime into compliance with the TRIPS Agreement.  Please explain in detail
what changes this legislation would make to the existing regime, indicate the status of the
preparations of the legislation and provide an estimated date for enactment and enforcement of this
legislation.
Obviously, certain amendments were carried out in some articles of Law on Intellectual and
Artistic Works No. 5846, through enactment of Law No. 4110 on 12 July 1995, in order for therealization of our obligations indicated in Associ ation Council Annex No. 8 No. 1/95 within the frame
of Turkey - European Union - Customs Union.
Subsequent to the enactment of Law No. 4110, Laws Related to Approval of Our
Participation into "Convention of Rome on Protection of Performing Artists, Phonogram Producers
and Broadcasting Companies" and "Paris Act Amending the Berne Convention on Protection of
Literal and Artistic Works as Amended in 1979" became effective through being published in the
Official Gazette No. 22341 dated 12 July 1995.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 55
Nevertheless, as a result of works in the technical level after the publication of Law No. 4110,
it was determined that some articles of Law No. 5846 are not in harmony with the contracts stated
above.
On the other hand, in spite of the amendments made within the law in 1995, serious
complaints have been received stating that Law on Intellectual and Artistic Works No. 5846 is
insufficient in protecting intellectual rights and meeting the demands in both the sectoral and
international level due to the reasons of non-dissuasiveness of the fines awarded against the breaches,
insufficiency of the customs measures taken for preventing the piracy, non-availability of the
revocable protection with the applicable law, etc.
In this extent, "Draft for Amendment of Certain Articles of Law on Intellectual and Artistic
Works (1/538)" prepared in order to carry out the necessary amendments within the urging provisions
due to the abovementioned national and international needs and foreseeing amendments within
Article 44 of the applicable law has been accepted in Turkish Grand National Assembly, Commissionfor National Education, Culture, Youth and Sports with unanimity and is now within the agenda of
General Assembly of Turkish Grand National Assembly in order to be negotiated.  The draft is
ranking as the tenth among the laws to be negotiated.
Short explanations regarding the articles of the draft foreseeing amendment in Article 44 of
the applicable law are presented below:
- An explanatory text of article relating to the aim, scope and definitions has been
added to Law on Intellectual and Artistic Works No. 5846.
- Due to the fact that definition for cinematographic works issued in Article 5 of the
applicable law has a very limited extend, the definition has been reorganized in harmony with
the technological developments and international legislation.
- Heading of Article 6 of the applicable law has been amended as "Adaptations and
Compilations", eleventh sentence of first paragraph has been reorganized in order to
differentiate the data bases generated as a result of compilations from other selected andcompiled works and the expression stating "formed on condition that the rights of the author
of the work from which it is benefited shall not be prejudiced" has been added to the
beginning of second paragraph.
- With an arrangement made in Article 8 of the applicable law, it was stated that the
author is the real person who created the work of art, animators and dialogue writers have also
been included together with the authors of the cinematographic works as owners and
provisions containing arrangements related to the financial rights have been transferred to
Article 18 of the applicable law with respect to the systematic of the law.
- With an arrangement made in Article 10 of the applicable law, it was resolved that
rights of works of art created by contribution of more than one persons may be exercised by
real persons or legal entities bringing all of the authors of the said work of art together.
- With an arrangement made in Article 13 of the applicable law, establishment of an
effective intellectual property system was aimed with a recording - registering system created
in order for providing convenience in evidencing for determination of authorship without
establishing rights and for monitoring financial right assignments.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 56
- Necessary arrangements have been made in Articles 15 and 16 related to intangible
rights of the applicable law in order to remove misinterpretations in exercising of the financial
rights.
- With the amendment carried out in Article 17 of the applicable law, determination of
exceptional rights held by authors during exhibition of rare works like handwritings, pictures,
etc., against the propriety owners of the concerned works of art has been aimed.
- With an amendment carried out in Article 18 of the applicable law, arrangements
related to financial rights within Article 8 of the applicable law have been transferred to this
section and also parallel to the amendment carried out in Article 10, it was resolved that legalentities may exercise the rights upon the works of art created by their employees.
- Protection period stated in the second paragraph of Article 19 has been changed as
70 years in order to establish the parallelism to the protection period within the general sense
of the applicable law.
- Expression of "the original and copies of the work" existing within Article 22 of the
applicable law has been extracted from the text of the article and also due to the variations in
materials from which the work of art is recorded and of reproduction methods, expressions of
"by means of any way or method" and "directly or indirectly" have been added andreproduction methods have been clearly expressed.
- It was resolved that the right to rent out, lend, put up for sale or distribute by other
means the original or the reproduced copies of  a work shall belong exclusively to the author
with the amendment carried out in Article 23 of the applicable law.  In this respect,arrangements related to exercising of sales and distribution authorizations have been made.
- Transmission right to the public, including the internet, has been rearranged through
the amendment carried out in Article 25 of the applicable law.  This arrangement shall enable
sales of the works of art by means of electronic commerce upon permission of the author.
- An arrangement related to the issue that "in  case of more than one authors, protection
period shall continue for 70 years after the death of the last surviving author" has been made
within Article 27 of the applicable law.
- Resolution aiming that "presentation of a published work of art shall only be possible
within non-profiting organizations like education institutions exclusively for purposes ofeducation and instruction and only in places like classrooms and theatre halls dedicated to this
purpose and only for face-to-face instructional activities" has been established with the
arrangement made in Article 33 of the applicable law.
- Creation of selected or compiled works for educational and instructional purposes
through adaptations shall only be possible upon the consent of the author, based on the
amendment carried out in Article 34 of the applicable law.
- An arrangement stating that some sections of intellectual and artistic works may be
used in nature of news for informative means with the amendment carried out in Article 37 ofthe applicable law.
- An arrangement stating that exercising of the transporting media used for recording
of intellectual and artistic works in public places shall be subject to the permission of theIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 57
author and they shall bear the banderoles related to the exercising the right in public places
has been made with the amendment carried out in Article 41 of the applicable law.
- Arrangements related to incorporation of Professional Associations have been made
in Article 42 of the applicable law.
- Payments shall be made to the right owners by the broadcasting companies in case of
transmission of intellectual and artistic works through media like radio-television in
accordance with the amendment carried out in Article 43 of the applicable law.
- With amendments made in second and third paragraphs of Article 44 of the
applicable law, an arrangement containing deduction not exceeding three percent over the
production cost or importation cost of the transporting media used for recording intellectual
and artistic works and all kinds of technical devices utilised for reproduction of these and
usage of this deducted money in activities oriented to improvement of intellectual property
system and protection of cultural inheritance has been aimed.
- With the amendment made in second paragraph of Article 47 of the applicable law, it
was clearly stated that works of art created only by Turkish authors may become public
properties.
- In case of agreement before the stage of legal proceedings regarding reproductions
against the contract (smuggled reproductions), the author to grant the permission may claim
for up to maximum three times the amount which he might have obtained in the case of
execution of a contract or which is paid for the like works used or the amount of damages
sustained thereby according to the current value, in accordance with the amendment carriedout in 1
st paragraph of Article 68 of the applicable law.
- With the amendment carried out in last paragraph of Article 71 of the applicable law,
an arrangement imposing punishment of imprisonment from 4 to 6 years and pecuniary
punishments from 50 to 150 billions of Turkish Lira in case of intrusion to intangible rights
has been made.
- With the amendment carried out in 1st paragraph of Article 72 of the applicable law,
arrangements imposing legal proceedings due to reasons of intrusion to financial rights of
author and punishment of imprisonment from 4 to 6 years and pecuniary punishments from
50 to 150 billions of Turkish Lira with the amendment carried out in the last paragraph of the
same article against persons performing or displaying a work or exhibiting such work onpublic premises or organizing such performance or disseminating the same by means of
transmission devices;  against persons renting out a work or lending it to public and against
persons selling, disseminating and placing in commercial circulation in any manner
whatsoever and using copies through importing such copies whether by legal or illegal means,
without the consent of the author have been made.
- Intentional and organizational breaches and penalties to be awarded against them
have been arranged in the amendment carried out in Article 73 of the applicable law and
certain arrangements have been made in enabling the penalties imposed for preventing the
piracy acts causing illegal and unjust revenues and breaches of intellectual rights to bedissuasive;  thus the punishment of imprisonment has been determined to be from 2 to 4 years
and pecuniary punishments has been determined from 10 to 50 billions of Turkish Lira.
- An amendment has been carried out in Article 75 of the applicable law and Ministry
of Culture and related professional associations have been accepted as among persons orIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 58
institutions exercising the right to complain and certain arrangements have been made in
issues foreseeing that resolutions of closing, seizing and sealing a place by Office of Public
Prosecutor where illegal reproduction takes place in case of intrusion to intellectual rights
may be adopted ex officio and in case of repetition of the same offence, the penalties shall beincreased one time in order to enable the dissuasiveness of offences of infringement.
- An amendment has been carried out in Article 76 of the applicable law, foreseeing
establishment of Specialized Courts.  A certain arrangement has been made for cases of
sufficient evidence indicating that the persons using the intellectual and artistic works have
not obtained the necessary permission and authorization, the said persons shall bear the
obligation to document their fair usages, with a paragraph added to the end of the article.
- Closing of the places where act of piracy have been determined to be carried out and
seizure of the copies determined to be reproduced illegally in Customs have been aimed
within the amendment made in Article 77 of the applicable law.
- Rearrangements have been made in provisions related to the rights of the authors and
financial and intangible rights of the neighbouring right owners and fundamental and
exclusive rights like reproduction, transmission and public transmission through amendments
carried out in Article 80 of the applicable law.  Within this arrangement, film producers have
also been accepted among the neighbouring right owners.  It was resolved that punishment ofimprisonment from 2 to 4 years and pecuniary punishments from 10 to 50 billions of Turkish
Lira shall be imposed against persons infringing rights of authors and those of neighbouring
right owners.
- Procedures and merits have been determined related to prevention of piracy acts and
application of banderols that serve as a major determination instrument in differentiation
between legal and illegal copies due to the fact that each banderol carries a serial number.
Furthermore, it was aimed that punishment of  imprisonment from 4 to 6 years and pecuniary
punishments from 50 to 150 billions of Turkish Lira shall be imposed against persons
committing one of the infringement cases stated within this article.
- A revocable protection has been provided through the amendment carried out in
Additional Article 2 of the applicable law.  In this respect, the cinema films, computer
programs, databases and phonograms created before the year 1995 shall be subject to the
protection periods determined within the general context of the law.
- An article has been added to the draft, indicating the provisions repealed.  In this
respect;
(a) The expression "the original or adaptation of a work" in Article 24 of the applicable
law has been extracted from the text of the article in order to avoid from repetitions
due to the fact that adaptations are also accepted as works.
(b) Article 28 of the applicable law has been repealed due to the fact that translated
works are also subject to provisions related to protection periods of the applicable
law.
(c) Article 29 of the applicable law has been repealed and provisions within this article
have been added to Article 27 that is related to protection periods since it has been
resolved that arranging the protection periods in one sole article shall be appropriate.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 59
(d) The expression "publication or" within Article 38 of the applicable law has been
extracted from the text of article due to the fact that the act of publication is placed
within the scope of reproduction right, one of the financial rights of the author.
(e) Article 39 of the applicable law has been totally repealed due to the fact that the
concerned article is open to interpretation to a degree that may cause infringement of
transmission rights of the authors of literal works of art.
(f) Last paragraph of Article 57 of the applicable right has been repealed due to the fact
that it was determined to be in contradiction with the first paragraph of the same
article and Article 24 of the applicable law.
(g) Paragraph (4) of the amended Article 73 has been repealed in order for making the
discrimination between smuggled broadcasting acts and pirate broadcasting acts and
enforcement of provisions of Article 68 "In Case of Intrusion to Financial Rights" in
case the amount reproduced exceeds the amount stated in the contract.
- An arrangement adding an Additional Article 4 to the applicable law in order to
realize the protection of the information related to the works of art and the figures or codes
representing this information in the way dete rmined by the authors or right owners during
public presentation and transmission of the works of art, including the internet has been made.
An additional arrangement has been made regarding the act of imposing punishment ofimprisonment from 2 to 4 years and pecuniary punishments from 10 to 50 billions of Turkish
Lira against unauthorized changes of this information and the figures or codes representing
this information.
- An Additional Article 5 has been added to the applicable law, aiming compilation of
reproduced copies of intellectual and artistic works to be carried out Minister of Culture, in
order to transfer these works of art, constituting a major part of the Turkish culture to the
future generations.
3. Please describe in detail the provisions that will implement fully Article 18 of the Berne
Convention, as incorporated by Articles 9, and 14.6 of the TRIPS Agreement.
Article 18 of Berne Convention is on the protection periods to be benefited by the works of
art that gained publicity or those not yet presented to public on the date when this contract became
effective.  Equivalence of the concerned article in Law on Intellectual and Artistic Works No. 5846,
amended with Law No. 4110 is Additional Article 2.
In accordance with Additional Article 2:"Protection periods in this law shall be applicable to the works, adaptations and productions
that gained publicity after the Law became effective with respect to affiliated rights,
cinematographic works, computer programs and databases.  Provisions related to authorship
of cinematographic works shall be applied to cinematographic works started to be producedafter this Law became effective."
As seen above, Additional Article 2 foresees enforcement of the protection periods to the
works, adaptations and productions that gained publicity after the Law became effective with respect
to affiliated rights, cinematographic works, computer programs and databases.
Protection periods start with emergence of the works of art i.e their determination or gaining
publicity. Enforcement of the beginning of protection periods to the works that gained publicity after
Law No. 4110 became effective creates an inequality in works that are subject to shorter protectionIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 60
periods like cinematographic works in Law No. 5846 dated 5 December 1951.  Due to this reason,
while some cinematographic works are subject to protection period of tenure of life plus 70 years,
some are subject to 20 years of protection, a very short period when compared to the former. This fact
constitutes a contradiction to Article 7 and Article 18 of Berne Convention for Protection of Literaland Artistic Works to which our company is a party.
Furthermore, cinematographic works produced before 12/6/1995, validity date of Law
No. 4110, and those subject to longer protection periods in countries of origin are subject to shorter
protection periods in our country with the applicable Additional Article 2.
Due to this reason, the inequality between the works with respect of protection periods has
been removed through an arrangement made in Additional Article 2 with Law Draft Related to
Amendment of Certain Articles of Law on Intellectual and Artistic Works No. 5846 and a revocable
protection has been established; thus harmonization with national and international legislation has
been established.
The arrangement within the second paragraph grants a transition period of 6 months directed
to protection of people holding possession of the copies of works after expiration of the protection
periods due to the truest reasons.
In this respect, Additional Article 2 within the draft has been reorganized as specified below."Additional Article 2 - The provisions governing the terms of protection in the present Law
are, during the time the amendment made in this Article has taken effect, applicable to:
1. All works, fixed performances and phonograms available in Turkey and produced by
authors and affiliated right owners who are citizens of Turkish Republic;
2. Foreign works, fixed performances and phonograms which have been produced in
other countries party to international contracts and agreements which Turkey is also a
party to and which have not become public since the term of protection has not
expired in those countries.
Those who hold the possession of works, fixed performances and copies of phonograms
which are under protection as a result of application of first paragraph, may sell or dispose of
such copies until the end of six months following the date on which the law takes effect.
However, the exercise of rights with respect to works, fixed performances and phonograms
granted to authors and other right owners within the framework of the present law shall be
subject to the permission of the authors or right owners.
The provisions of the present law with respect to ownership of cinematographic works are
applicable to cinematographic works the production of which is started after 12 June 1995when Law No. 4110 entered into force."
C. T
RADEMARKS
4. Please explain in detail  how Turkey's trademark and other laws provide for the protection of
well-known trademarks and service marks, citing the relevant provisions of law.
Well-known trademarks are drawn up in the Decree Law by two provisions:IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 61
(i) In the Article 7 (absolute grounds for refusal) states "the following signs shall not be
registered as a trademark:
a) signs which do not conform with the provisions of Article 5;
b) trademarks identical or confusingly similar with a trademark registered earlier
or with an earlier filing date for registration in respect of an identical or same
type of  product or services;
c) trademarks which consist exclusively of signs or indications which serve in
trade to indicate the kind, characteristics, quality, intended purpose, value,geographical origin, or designate the time of production of the goods or of
rendering of the service or other characteristics of goods or services;
d) trademarks which consist exclusively of signs and names used to distinguish
specific groups of craftsmen, professionals or tradesmen or have becomecustomary in the current and established practices of the trade;
e) signs containing the shape of the product which results from the nature of the
good, which is necessary to obtain a technical result or which gives
substantial value to the good;
f) trademarks which are of such a nature as to deceive the public, such as to the
nature, quality, place of production or geographical origin of the goods and
services;
g) trademarks which have not been authorized by the competent authorities and
are to be refused pursuant to Article 6 ter of the Paris Convention;
h) trademarks containing badges, emblems or escutcheons other than those
covered by Article 6 ter of the Paris Convention which have not been
authorized by the competent authorities and are of particular historical and
cultural public interest;
i) well known marks according to 6 bis of the Paris Convention, use of which
are not permitted by their owners;
j) trademarks which contain religious symbols;k) trademarks which are contrary to public policy and to accepted principles of
morality.
The provisions of (b), (c) and (d) can not be invoked to refuse the registration of a trademark
which has been used before the registration and has acquired through this usage distinctive character
in respect of the goods and services for which it is to be registered.
(ii) Furthermore Article 8 (relative grounds for refusal) clarify that " upon opposition by
the proprietor of an application for registration of a trademark or of a registeredtrademark, the trademark applied for shall not be registered under following
conditions:IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 62
(a) if the trademark applied for is identical with a registered trademark or a trademark
that has an earlier application date and the protection is sought for the identical goods
and services;
(b) if because of its identity with or similarity to a trademark which has an earlier
application date or a registered trademark and because of the identity or similarity of
the goods and services covered by the trademarks there exists a likelihood of
confusion on the part of the public and the likelihood of confusion includes the
likelihood of association with the registered trademark or with the trademark which
has an earlier application date.
Upon opposition by the proprietor of a trademark, a trademark shall not be registered where
an agent or representative of the proprietor of the trademark has applied for registration thereof his
own name without the proprietor's consent and without a valid justification.
Upon opposition by the proprietor of a non-registered  trademark or of another sign used in the
course of trade, the trademark applied for shall not be registered provided that:
(a) the rights to the sign were acquired prior to the date of filing for registration of the
trademark, or the date of priority claimed for the application for registration;
(b) the sign confers on its proprietor the right to prohibit the use of a subsequent
trademark;
A trademark applied for which is identical or similar to a registered trademark or to a
trademark with an earlier filing date may be used for different goods and services. However, where in
the case of a registered trademark or of a trademark which has an earlier filing date for registration,
the trademark has a reputation and where the use without due cause of trademark applied for would
take unfair advantage of, or be detrimental to the distinctive character or repute of the registered
trademark or of the trademark with an earlier a pplication date, upon opposition by the proprietor of
the earlier trademark, the trademark applied for shall not be registered even to be used for goods and
services which are not similar to those for which the earlier trademark is registered.
Upon opposition by the holder of the relevant right, the trademark applied for shall not be
registered if it contains the name, photograph, copyri ght, or any industrial property rights of the third
parties.
Upon opposition, trademark applied for which is identical or similar to a collective or a
guarantee mark shall not be registered within three years from the date of expiry of the collective or of
the guarantee mark.
Trademark applied for which is identical or similar and which is to be registered for the
identical or similar goods and services of a trademark which has not been renewed, upon oppositionshall not be registered within two years of the expiry date" .
(iii) In accordance with Article 2 of The Decree-Law;  ''trademark'' means trademarks or
service marks including guarantee marks and collective marks.
Also Article 5  defines  a trademark as "provided that it is capable of distinguishing the goods
and services of one undertaking from the goods and services of other undertakings, may consist of all
kinds of signs being represented graphically such as words, including personal names, designs, letters,
numerals, shape of the goods or their packaging and by similar descriptive means capable of being
published and reproduced by printing".IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 63
Follow-up  question:
In response to question 4 posed by the United States, Turkey provided thorough information
on the way in which the owner of a well-known trademark can prevent registration of a confusingly
similar trademark.  We would appreciate additi onal information regarding the way in which the
owner of a well-known trademark can prevent the unauthorized use of its trademark or service mark
i) in connection with same or similar goods or services if such use is likely to cause
confusion; and
ii) in connection with dissimilar goods or services if such use might imply a connection
between those goods or services and those of the owner of the well-known mark if the
interests of the owner of the well-known mark would be likely to be damaged.
The question is related to the issue of what remedy has a well known trademark owner to
prevent unauthorised use of its trademark or service mark (i) in connection with same or similar goods
or services if such use is likely to cause confusion, and (ii) in connection with dissimilar goods or
services if such use might imply a connection between those goods and services and those of the
owner of the well known mark if the interest of the owner of the well know n mark would be likely to
be damaged.
As an answer to that question, emphasis should be made that apart from the provisions of the
Trademark Decree 556 which considers the well known marks among the absolute grounds for refusal
for registration, unauthorised use of the well known trademarks are under the protection of unfair
competition provisions of Turkish Commercial Code.
Article 56 of the Code describes the unfair competition as an abuse of economic competition
in any manner by means of deceitful acts incompatible with good faith.
Within this framework, the Code goes further and gives an example, which matches to the
question; indent 5 of Article 57 of the Code stipulates that:
"Trying to create confusion with the goods and products of another person or having recourse
to measures likely to create this confusi on knowingly or unknowingly, particularly using
names, titles, marks, signs and similar distinctive means legally used by another person, or
selling or keeping goods giving place to confusion for a reason other than personal needs."
In such a case the owner of the well-known trademark owner may demand:
a) the establishment of the existence of unfair competition,
b) the prevention of unfair competition,
c) the suppression of the material conditions resulting from unfair competition,
d) Compensation of damages, if there is a fault.
e) Compensation of moral damages.
The judge may also order the payment of the value of advantages, which the defendant might
secure through unfair competition, as damages in favour of the plaintiff.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 64
Any judgement given against a person in pursuance of (a) and (b) mentioned above shall also
be enforceable against persons having obtained directly or indirectly the goods, which are the object
of unfair competition.
Such a judgement may be published at the expense of a losing party.In addition to those civil remedies the Commercial Code brings criminal liability to the
defendant if he committed the described acts wilfully. In such case, Article 64 of the Code states
imprisonment for a term of one month to one year or a fine or both penalties.
If the person continues the act of unfair competition notwithstanding the final judgement
concerning the prohibition of unfair competition, then the Code envisages imprisonment for a
minimum term of six months and a heavy fine.
The amount of fine stipulated in the Code is subject to increase each year according to the re-
evaluation ratio announced by the Ministry of Finance. This ratio was 52.1 % for the year 1999.
5. Please describe in detail any limitations or special requirements that apply to trademark
rights under Turkey's laws and indicate  how those limitations take account of the legitimate interests
of the owner of the trademark and third parties.
"The proprietor of a trademark cannot prevent the third parties from using in the course of
trade his own name or address, indications concerning the kind, quality, quantity, intended
purpose, value, geographical origin, the time of production of the goods or of rendering of the
services, or other characteristics of the goods or services, provided the use is effected in
accordance with honest practices in industrial or commercial matters" (Article 12, Limits onthe Effects of a Registered Trademark)
D. G
EOGRAPHICAL INDICATIONS
6. Please explain whether, in an opposition proceeding related to a new geographical
indication, a pre-existing registered trademark or an earlier filed request for registration of atrademark  in Turkey would be grounds for refusal to recognize the geographical indication.
In our opposition proceeding related to a new geographical  indication is defined in Article 11
of Decree Law No. 555 pertaining to the Protection of Geographical Indications.  It is determined in
this article that:
"Within six months of the publication of the application, anybody legitimately concerned may
object to the registration by filing an objection at the Institute with respect to conformity withArticles 3, 5, 7 and 8.
Institute receiving the applicatio n shall have the objection examined by one or more of the
public institutions or universities or independent private institutions which have expertise in
the subject matter.  The examination fees to be paid to these institutions and the fees for theservices of the Institute shall be borne by the applicant and be payable to the Institute.
Objections by public institutions are not subject to fees."
Article 18 of the decree law covers the relationships between registered trademarks and
registered geographical indications as following:IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 65
"Where a geographical sign has been applied for registration in accordance with this Decree-
Law, the application for registration of a trademark corresponding to the provisions of Article
15 or to be used in relation to the same product shall be refused.
The claim specified in Article 15 of this Decree-Law can be asserted against an application
for the registry of a trademark within five years of the general recognition in Turkey of the
violation of the registered geographical sign.  Sa me claims can be asserted against a registered
trademark within five years of the date of registration provided that the date of general
recognition of the violation of the geographical sign is earlier than the publication date of the
trademark.
Claims under the second paragraph of this Article can be asserted only for a valid
geographical sign registered in good faith.
Trademarks registered in breach of the first paragraph shall be declared invalid.
Validity of a registered trademark shall uphold and its use in good faith shall continue,
provided that the application for the registration of the trademark was filed in good faith and
registered or that the right of use was acquired before the registered geographical sign has
acquired protection in its country of origin or before coming into effect of this Decree-Law.
A previously registered trademark with features that are liable to mislead the public as to
actual characteristics of the product shall not be registered as a designation of origin or as a
geographical indication".
In brief, it makes clear in paragraph 5 that rights in a trademark registered in good faith, or the
right to use acquired, before the protection of the geographical indication, will be upheld, while
paragraph 6 indicates that a registered trademark which misleads the public as to characteristics shall
not be registered as a designation of origin or as a geographical indication.  In considering an
objection based on an earlier trademark made under Article 11, the Institute will consider the validity
of the earlier trademark under these two paragraphs before deciding whether its rights will be upheld
against the later application for the geographical indication.  It will also consider whether an
application for the registration of a geographical indication meets the requirements of Article 5 (whichdo not exclude trademarks per se ).
E. I
NDUSTRIAL DESIGNS
7. Please describe in detail the number in which textile designs are protected in Turkey and cite
to the relevant provisions of law.
According to Turkish Industrial Design Decree-Law 554, Article 26.
The application procedures for designs of products in the industries subject to frequent
fashion changes may be simplified by the Institute through an Implementing Regulation.
Therefore, textile products which are considered to be novel or decided to have individual
characteristics have been put under protection.  The applicant may benefit from the multiple
application system if there exists more than one design for registration.  Since textile designs are
prone to frequent changes in fashion and can easily be copied, the applicant may use his right of
deferment of publication as stated in Article 35 as follows:
The applicant for a registered design may request when filing the application, that the
publication be deferred for a period not exceeding 30 months from the date of filing the application.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 66
Textile designs are protected under the Industrial Designs Decree Law. The definition must
be understood in a broad sense.  Everything which gives rise, in appearance of a product, to an
aesthetic impression can be an industrial design.  This would include textile designs.  During theimplementation of Decree Law, application of several designs may be combined in one application.
However, this possibility is subject to the condition, except in cases of ornamentation, that the
products in which the designs are intended to be incorporated or to which they are intended to be
applied all belong to the same sub-class or to the same set or composition of items, which especially
applies to textile designs and thus complies with Article 25.2 of the TRIPS Agreement.
F. P
ATENTS
8. Article 6 of Turkey's patent law includes a number of exclusions from patentable
subject-matter.  Please explain whether an invention within the categories specified below can be
patented under Turkey's law if it is novel, involves an inventive step, and is industrially applicable:
(a) process inventions which, in whole or in part, consist of steps that are performed by a
computer and are directed by a computer program;
(b) product inventions consisting of elements of a computer-implemented invention
including;
(c) process inventions that facilitate the conduct of business;  and
(d) micro-organisms.
Firstly, it should be noted that according to Article 9 of Turkish Decree Law No. 551 the
invention should have an inventive step which described as the invention is the result of an activity
which is not obviously realizable from the state of the art, by a person skilled in the concerned
technical field.  In other words, an invention should solve a problem in a technical field, that is the
invention should have technical features.  So, the exceptions in the first part of this article are not
patentable since they are not being inventions as of their nature.  Therefore, computer programs per se
are excluded from patentability, however, a computer program as a part of an invention that consists
of any technical mean, for example an equipment, is patentable within the scope of the invention.
According to this:
(a) process inventions containing steps that are performed by a computer and are directed
by a computer program are patentable only if the invention does not consists of a
computer program in whole;
(b) product inventions consisting of elements of a computer-implemented invention is
patentable.
In addition to this, since Turkey accepted European Patent Convention (EPC) the Articles
about computer programs will be reviewed according to possible changes in EPC in the following
agenda.
(c) process inventions that facilitate the conduct of business is not patentable due to not
being inventions as of their nature;
(d) Article 6 excludes only plant and animal species/varieties from patentability.
Moreover, Article 46 states that " …Where the invention pertains to a microbiological
process and the related microorganism is not accessible to those interested, theIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 67
description shall only be deemed to fulfill the requirements specified under the
Paragraph one of this present Article provided the following conditions are met:  i)
the description contains the information regarding the characteristics of the
microorganism;  ii) the applicant has deposited, no later than the date of filing theapplication, a culture of the microorganism with an authorized institution, established
in accordance with international conventions…".  In addition to this, Article 82
encloses that :  "Where the subject matter of an application for patent refers to a
process related to microorganism(s), the protection, here abovementioned, shall only
commence when the microorganism has been made accessible to those interested…".
From these Articles, it is obvious that microorganisms are patentable.  As a
consequence of this, there are a number of patents and patent applications related/onmicroorganisms in Turkey.
9. Under Article 6 of current law, any invention contrary to "public policy or generally accepted
standards of morality" is excluded from patentable subject-matter.  Please describe the process by
which the Government of Turkey determines whether an .invention is contrary to public policy orgenerally accepted standards of morality and the criteria used to make those determinations, citing to
the relevant provisions of law.  Also, please indicate whether a determination that an invention is
excluded from patentability under Article 6 is appealable and, if so, to what body would that appeal
be made.
There is no written standards or criteria for determining that an invention is contrary to
"public order" or "morality".  In addition to this, there has been no such a case under question up to
date. According  54 of Turkish Decree Law No. 551:
"The compliance of the specification, claim(s) and drawing(s) to the patentability
requirements is not comprised to be within the scope of this examination.  The Institute shallexamine the subject matter of the application, as of Articles 6 and 10 of this present Decree
Law, to determine whether or not it consists of an invention which is subject to patent
protection and which is applicable in industry.  The Institute after receiving/hearing the
opinion to the contrary of the interested party (applicant) and, duly motivating its decision,
shall reject the application when the invention, subject matter of the application, obviously
and unequivocally lacks the characteristics of novelty and applicability in industry.
Where the examination results in that, the application suffers formal deficiencies, in terms of
the provisions of Article 53, or that its subject matter is not an invention subject to patent
protection, the examination procedure is suspended and the applicant is requested to remedy
the deficiencies or to notify the Institute his objections within the period set forth in the
Regulation.
In the course of this procedure, the applicant may amend the claim(s) or divide the application
into more than one divisional application(s).
The Institute shall reject the application, in whol e or in part, in consideration of the claim(s),
when it does not find acceptable the objections raised against its decision, according to which,
the subject matter of the application is not an invention subject to patent protection or when
the existing deficiency has not been remedied, in compliance with the conditions and formal
requirements as set forth in the Regulation."
In addition to this, Article 26 of The Implementing Regulations Under The Decree-Law states
that:IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 68
"The Institute shall examine the subject matter of the application with respect to compliance
with Articles 6 and 10 of the Decree-Law to determine whether or not it is in the scope of
non-patentable subjects and inventions, and whether it is exploitable in industry.  Where, the
Institute finds that the application clearly and without doubt lacks novelty or lacks features ofindustrial applicability the applicant is allowed three months for submitting his observations.
The Institute after reviewing the opinions of the applicant shall come to a final decision.
Where the decision is negative, the Institute shall reject the application and submit the
justifications of the reasonings for rejection.
Where the examination reveals that within the provisions of Article 53 of the Decree-Law the
application has deficiencies with respect to formal requirements or that the subject of the
invention is in the scope of non-patentable inventions, the examination is suspended and the
applicant is requested to remedy the deficiencies or to submit his objections to the Institute
within three months.
The applicant, at this stage of the procedures, may amend the claim or the claims or divide the
application into further divisional applications.
The Institute shall reject the ap plication in total or in part with respect to claim or claims
where the objection to the Institute's decision on non-patentability has not been accepted orthe deficiencies have not been remedied in conformity with the provisions of this Regulation."
Also all the decisions of the Turkish Patent Institute is appealable according to
Article 146 (iii) of the Decree Law:
"For actions instituted against all of the Institute's decisions taken in respect of the provision
of  this present Decree-Law and for actions instituted against the Institute by third parties
having been damaged/prejudiced from the decisions of the Institute, the special court referred
in the first paragraph shall have competence."
10. Article 6 of the current law excludes "discoveries", "plans", and "scientific works'' from what
is considered patentable subject-matter.  Please explain and define the terms "discoveries", "plans",and "scientific works" as they are used in Article 6 and provide examples of subject-matter that falls
within these exclusionary categories, as well as subject-matter that does not.
There is no definitions for these acts in the Turkish Decree Law No. 551 or in the
Implementing Regulations.  But according to the prea mble of the Decree Law and to general opinion:
- discover is to see, detect or come upon something for the first time; discovery is the
act of discovering, that which is discovered.
- a plan is a devised shame, a way of executing an act, a method or arrangement
performed purely mental acts.
- a scientific work is results of systematized knowledge.  According to preamble they
contain esthetic characteristics.
Patents should be granted for tangible things (products, actual production processes and
practical applications) rather than for theories, ideas and principles.  There has been no case law to
define these matters more closely.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 69
11. Please identify any other exceptions to the rights conferred by a patent in Turkey and indicate
the manner in which the law of Turkey ensures that such exceptions do not unreasonably conflict with
a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the
patent owner, taking account of the legitimate interests of third parties.
The exceptions are explained in the following Articles of the Decree Law:
Limits of the Scope of Rights Conferred by a Patent:  Article 75
"The following acts shall remain outside the scope of rights conferred by a patent :(a) Acts devoid of any industrial or commercial purpose and limited to private ends/aims;(b) Acts involving, for experimental purposes, the invention, subject matter of a patent;(c) Extemporaneous preparations of medicines in pharmacies involving no mass
production and carried out solely in making up a prescription and acts related to themedicines thus prepared;
(d) Use of patented invention in the manufacture or operation of ships or spaceships or
airplanes or land transportation vehicles of countries signatory of the Paris
Convention or for satisfying the needs of these, provided that said vehicles happen tobe, temporarily or accidentally, within the boundaries of the Republic of Turkey;
(e) Where acts provided under Article 27 of the International Convention for Civil
Aviation dated 7 December 1944 are related to an aircraft of a State, the provisions of
this present Article shall apply likewise to said aircrafts."
Rights Conferred by Prior Use:  Article 77
"The right holder of a patent shall not have the right to prevent person or persons who, in
good faith, between the date of filing of the application and the date of priority, had worked
the invention in Turkey or had made serious and effective preparations to work the said
invention; from continuing to work the subject matter of the patent, in the same manner asbefore, or from commencing its working as of the preparations made to this effect.  However,
third persons may continue working the subjec t matter of the patent, in the same manner as
before, or commence its working as of the preparations made to this effect, only to the extent
necessary for meeting the reasonable needs of their enterprise.  Such right to work the
invention shall only be transferable with the enterprise.
The rights conferred by a patent within the meaning of Article 76 shall not extend to acts
related to products put to sale by persons indicated in Paragraph one of this present Article."
Restrictions on the Use of a Patent: Article 80
"A patented invention shall not be put into use, in any way, contrary to the Laws, or morality,
or public order or public health, and its working shall be subject to the prohibitions and
restrictions, whether temporary or permanent, established or to be established by Law."
12. Please verify that the terms of all patents in existence in Turkey on 1 January 2000, will not
end before the expiration of a period of tw enty years measured from the date of filing.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 70
The expiration period of all living patents, that are granted with (substantive) examination, in
existence in Turkey on 1 January 2000 is 20 years measured from the date of filing.  Please refer to
Article 72:
"The term of a patent granted with (substantive) examination shall be a non-extendible period
of 20 years from the date of filing the application.
The term of a patent granted without (substantive) examination shall be seven years.  Where
the (substantive) examination request is made within the period of seven years and the patent
is granted after such (substantive) examination is conducted, the term of the patent shall be
completed to 20 years as of the date of filing the application."
13. Articles 96, 97, and 99 appear to require that the invention claimed in a patent be
manufactured in Turkey or a compulsory licence under the patent can be granted.  Please explain
how this provision conforms to the requiremen t under Article 27.1 of the TRIPS Agreement that
patent rights be enjoyable without discrimination as to whether the products are imported or locallyproduced.
According to Article 73 of Turkish Decree Law No. 551, the holder of a patent shall benefit
from the right it confers without differentiating between the place of the invention, its field of
technology and whether the concerned products ar e imported or of domestic production.  In addition
to this, the revised Article 40 of the Implementing Regulations Under The Decree Law  No. 551, alsoArticle 40 (amended at 6 December of 1998) of  The Implementing Regulations Under The Decree
Law clarify the object; it accepts importation certificate as an evidence of "working" of the patent.
Therefore, the provisions stated in Article 27.1 of the TRIPS Agreement are completely covered in
Turkish legislation.  Consequently, there is no discrimination in that whether the products are
important or locally produced.  So, importation of the patented product is not a reason for third partiesfor proposing a compulsory licence.
14. Article 102 of Turkey's patent law appears to permit compulsory licensing of a patent for
purposes of export.  Please explain how Article 102 complies with the obligations under Article 31, in
particular with subparagraph (f).
Please refer to the Article 102 of Turkish Decree Law No. 551 again:  "The exportation
(situation/possibility) of the patented invention shall not be accepted to constitute a ground for
compulsory licence.  This provision is completely sa me what is stated in Article 31(f) of the TRIPS
Agreement:  "any such use shall be authorized predominantly for the supply of the domestic market of
the Member authorizing such use".  As a result of this, exportation does not constitute a ground for
proposing a compulsory licence.
15. Please indicate the number of compulsory licences issued under Articles 99, 101, 102, and
103 of' Turkey's patent law in each of the last five years.
There is only one compulsory licence issued under any of the articles mentioned in the
question in the last five years.  This compulsory licence issued in 02/12/1998 by the decision of a
court.  This decision was taken before the revision of the Implementing Regulations and there is noevidence (even no importation certificate) filed for the patent by the right holder.
16. Please describe in detail the manner in which plant varieties are protected under Turkey's
laws and cite to the relevant provisions of law.
For protection of plant varieties, a "Draft Legislation Relating to Breeder Protection Rights
for New Plant Varieties" was prepared by the Ministry of Agriculture and Rural Affairs.  The DraftIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 71
Law has been prepared by taking the 1991 text of The International Union for the Protection of New
Varieties of Plants (UPOV) Convention.  The purpose of the Draft, which covers the whole plant
varieties, is to encourage the development of new plant varieties, and to provide the protection of the
breeders rights.
On the other hand, according to the Article 6 of Turkish Decree Law No. 551, patents are not
granted for plant and animal varieties/species or processes for breeding/plant or animal
varieties/species, based mainly on biological grounds.  However, processes for plant breeding which
are not based on mainly biological grounds are patented in Turkey.  Since Turkey is a member of EPO
since 29/01/2000 and since the Turkish legislation is modelled on the EPC, the implementation on this
subject resembles to the implementation done by EPO. In addition to this, any changes in EPC on thissubject will directly affect Turkish legislation.
G. L
AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
17. Please describe how Turkey implements the oblig ations of Section 6, Part II of the TRIPS
Agreement and cite to relevant provisions of law.
We have a draft law on the protection of Layout-Designs of Integrated Circuits and the text
of the said draft was fully notified to the WTO pursuant to Article 63.2 of the TRIPS Agreement.
The text of the draft law covers, the General Provisions, Right to Protection, Limitation of Protection
Application and Registration, Legal Transactions related with the application and registration right,
Invalidity and Termination of the right, Infringemen t of right and Civil Procedures, Exploitation by a
government agency or third person, Penal Provisi ons, Article 1, 2, 3, 5, 6, 7, 9, 12, and 13 of Draft
Law are in line with Article 35 of the TRIPS Agreement.  Article 12 is in line with Article 36 of the
TRIPS Agreement.
Effect of Protection
Article 12.  The protection shall have the effect that the following acts shall be prevented by
right holder if performed without the authorization of the right holder:
(a) reproducing, whether by incorporation in an integrated circuit or otherwise, the
protected layout-design of integrated circuits in its entirety or any part thereof, except
the act of reproducing any part that do es not comply with the requirement of
originality referred to in Article 6;
(b) importing, selling or otherwise distributing for commercial purposes the protected
layout-design of integrated circuits, an integrated circuit in which the protected
layout-design of integrated circuits is incorporated or an article incorporating such anintegrated circuit in so far as it continues to contain an unlawfully reproduced layout-
design of integrated circuits.
Article 13 paragraph (d) is in line with Article 37.1 of the TRIPS Agreement.
Limitation of Protection
Article 13.  The effect of protection of a layout-design of integrated circuits under this Law
shall not extend to:
(a) reproduction of the protected layout-design of integrated circuits for private purposes
or for the sole purpose of evaluation, analysis, research or teaching;IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 72
(b) subject to acts in Article 12 of a layout-design which is the result of analysis or
evaluation under item (a) and is original within the meaning of article 6;
(c) importing, selling or otherwise distributing commercial purpose of the layout-design
of integrated circuits or integrated circuits where the act is performed in respect of a
protected layout-design of integrated circuits, or in respect of an integrated circuit in
which such a layout-design of integrated circuits is incorporated, that has been put on
the market by, or with the consent of, the right holder;
(d) the performance of any of the acts referred to in Article 12.1(b) in respect of an
integrated circuit incorporating an unlawfully reproduced layout-design of integratedcircuits or any article incorporating such an integrated circuit where the person
performing or ordering such an act did not know and had no reasonable ground to
know, when acquiring the integrated circuit or the article incorporating such an
integrated circuit, that it incorporated an unlawfully reproduced layout-design of
integrated circuits;  however, after the time that such person has received sufficientnotice that the layout-design of integrated circuits was unlawfully reproduced, that
person may perform any of the said acts only with respect to the stock on hand or
ordered before such time and shall be liable to pay to the right holder a sum
equivalent to a reasonable royalty such as would be payable under a freely negotiated
licence in respect of such a layout-design of integrated circuits;
(e) the performance of any of the acts referred to in Article 12.1 (b) where the act is
performed in respect of an identical layout-design of integrated circuits which is
original and has been created independently by a third party.
Part Eight of the Draft Law are in line with Article 37 (2) of the TRIPS Agreement.
Conditions of Exploitation
Article 38.  The Council of Ministers may decide that, even without the authorization of the
right holder, a Government agency or a third person may exploit the layout-design of
integrated circuits in the case of:
(a) the public interest, in particular, national security, nutrition, health or the
development of other vital sectors of the national economy requires the exploitation
of a protected layout-design of integrated circuits for public non-commercial use;  or
(b) a judicial or administrative body has determined that the manner of exploitation of a
protected layout-design of integrated circuits, by the right holder or his licence, is
anti-competitive, would remedy such practice,
A request for the Council of Minister's author ization shall be accompanied by evidence that
the right holder has received, from the person seeking the authorization, a request for a
contractual licence, but that person has been unable to obtain such a licence on reasonable
commercial terms and conditions within a reasonable time. Institute evaluates its idea,
depending on the information and evidence, and delivers it to the Council of Minister by
related Ministry.
The exploitation of the layout-design of integrated circuits shall be limited; in scope and
duration, to the purpose for which it was authorized and shall be predominantly for the supply
of the domestic market.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 73
It shall be non-exclusive and shall be subject to the payment to the right holder of an adequate
remuneration therefor, taking into account the economic value of the Council of Ministers
authorization, as determined in the Minister's decision and, where applicable, the need to
correct anti-competitive practices.
The exploitation right given by the Council of Ministers to the third party may be transferred
on the condition that it is transferred together with the business or the premises/part of the
business where it is being valourized.  The Institute shall enter the transfer in the register.
The transfer shall have no effect against third parties until this register.
The exploiter does not have a right to give secondary licence.  Such an action shall be deemed
void.
The legal validity of any decision relating to  the authorization and to the remuneration
provided in respect of such use shall be subject to judicial review by the competent court.
Where such use is permitted to remedy a practice determined in paragraph 1 (b), then the
paragraph 2 and 4 shall not be implemented.
Exploitation for Public Interest
Article 39.  The Council of Ministers may decide that to be put to use on grounds of public
interest by means of exploitation according to the Article 38 paragraph 1 (a).  The concerned
Ministry proposes to the Council Ministers to issue a decree pertaining to the grant of
exploitation. In case, where the use of the layout-d esign of integrated circuits is important for
national defense or public health, the proposal is prepared jointly by the concerned ministry,and the Ministry of National Defense or the Ministry of Health.
The decision to grant exploitation, may, restrict the use of the layout-design of integrated
circuits to one or some enterprises on grounds of its importance for national defense.
Termination of Exploitation Right
Article 40.  Upon the request of the right holder, the Council of Ministers shall terminate the
exploitation right if he is satisfied that the circumstances which led to his decision have
ceased to exist and are unlikely to recur or that the beneficiary of the authorization has failed
to comply with the terms of the authorization.
Notwithstanding of the first paragraph, the Council of Ministers shall not terminate an
authorization if he is satisfied that the adequate protection of the legitimate interests of the
beneficiary of the authorization justifies the maintenance of the authorization.
Article 7 of the Draft Law is in line with Article 38 of the TRIPS Agreement.
Commencement and Term of Protection
Article 7.  Protection of a layout-design of inte grated circuits under this Law shall commence:
(a) on the date of the first commercial exploitation; anywhere in the world, of the layout-
design of integrated circuits by the right holder, provided an application for protection
is filed by the right holder with Institute, within the time limit of two years;  orIP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 74
(b) on the filing date accorded to the application for the registration of the layout-design
of integrated circuits filed by the right holder, if the layout-design of integrated
circuits has not been previously exploited commercially anywhere in the world.
Protection of layout-design under this Law shall terminate at the end of the tenth calendar
year after the date of commencement of protection.
Layout-design protection can no longer be claimed if the layout-design has not been
commercially exploited, other than confidentially, or has not been filed with the Institute
within 15 years after the day of it is first fixation.
H. PROTECTION OF UNDISCLOSED INFORMATION
18. Paragraph 2 of Article 39 of the TRIPS Agreement requires Members to provide protection
for all undisclosed information, including technical know-how and commercial information, which
meets certain criteria.  This protection must endure as long has the conditions identified in
paragraph 2 of Article 39 are met and protection cannot be conditioned on registration.  Please
explain how Turkey fulfils this obligation.
Protection of undisclosed information is provided by four legislation's:
(i) Turkish Commercial Code;
(ii) Regulation on Pharmaceutical Products;
(iii) Civil Servants Act;  and(iv) Patent Decree.
Protection under Commercial Code is provid ed through unfair competition provisions.
Article 57/7-8 Describes the acts incompatible with good faith and the acts which constitute unfair
competition.  Among those:
- deducing the employees, agents or other assistants and getting them to divulge or
obtain the trading and manufacturing secret s of their employer or of his agents;
- taking an illicit advantage from trading or manufacturing secrets obtained or learnt
incompatible with good faith or divulging them to others are the acts constitute unfair
competition.
Articles 58-63 provide civil remedies such as prevention of the infringement, compensation
for damages for those unfair competition related to inter alia undisclosed information.  Additionally,
Article 64 stipulates criminal sanctions within the form of imprisonment and/or fine against unfair
competition related to undisclosed information.
19. Paragraph 3 of Article 39 of the TRIPS Agreement requires that Members protect certain test
data associated with requests to obtain approval to market pharmaceutical and agricultural chemical
products from disclosure and from "unfair commercia l use".  Please describe in detail how Turkey
implements this obligation and cite to the relevant provisions of law.
(1) Article 36 of the Regulation on Pharmaceutical Products brings responsibility on
Ministry of Health not to divulge the information disclosed by the applicant during the
application of marketing permission.
(2) Additionally Civil Servants Act Article 31 brings responsibility on civil servants
employed in the Ministries and in the public institutions not to divulge secret business
information related to their service.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 75
Infringing acts against those last two legislation brings responsibility of the public
administration in accordance with Article 125 of the Constitution.  (Article stipulates that
recourse to judicial review shall be available against all actions and transactions of public
administrations.) Through those judicial review  the public administration may be obliged to
pay compensation in the Administrative Court to the persons whose secret information
divulged by the civil servants in the administration.
(3) Article 83/3 of Patent Decree states that information and test results should be kept
confidential by the authorities (Turkish Patent Institute) when they are issuing licences for
manufacture.
Follow-up question:
In response to question 19 posed by the United States, Turkey indicates how it protects from
disclosure data submitted to obtain marketing approval of agricultural chemical and pharmaceutical
products.  Please explain if and how its law prevents relevant Ministries from relying on earlier
submitted data of one party to approve another party's request for marketing approval of itsagricultural chemical or pharmaceutical product wh ich is bioequivalent to the product of the first
party.
Trade related intellectual property rights are protected in accordance with the below-
mentioned related instruments of the Turkish legislation. Moreover, relevant departments of theMinistry of Health are obliged to comply with the TRIPS Agreement.
1. Regulation for the Registration of Medical Pharmaceutical Products (Official Gazette
No. 22218 of 2 March 1995).
Under the title concerning 'confidence', Article 36: "The protection of confidence of
the information and data submitted by an applicant during the application for theregistration is under the responsibility of the Ministry of Health."
2. Protection of patent rights (Official Gazette No: 22326 of 27 June 1995).
Article 36: Liability of confidence.
Article 72: Patent duration.
Article 74: The usage of patent elements by the third parties.
Article 83: The content of protection, which is strengthened by patent.
3. Protection of Industrial Designs (Official Gazette No. 22326 of 27 June 1995).4. Protection of Trademarks (Official Gazette of 24 June 1995).
5. The relevant articles of Turkish Law of Commerce for protection against unfair
competition.
The subject of well-known trademarks is under the responsibility of the Turkish Patent
Institute and according to the Paris Agreement, foreign trademarks are also under protection inTurkey.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 76
Data exclusivity and marketing exclusivity are not covered by Turkish legislation, as it is the
case in the EU and the US. Only patented product is protected by the Patent Law until the due date of
the patent expires. In some European countries data exclusivity is applied in a more rigid way than
OECD members.
The disclosure of the information and the data, submitted by the first party to obtain
marketing approval of pharmaceutical products is strictly forbidden, while examining the second
party’s application.
This is evaluated as essential similar products, so that bioequivalance data and clinical,
pharmacological and toxicological data are requested upon applications. There is not a time limit for
the second application. However patented produ cts are under protection through patent duration.
I. ENFORCEMENT
20. Please describe in detail the civil actions and remedies that are available under Turkey's laws
to right holders in plant varieties and undisclosed information, that permit effective action against
any act of infringement to prevent infringement and deter further infringement, and cite to the
provisions of law providing for those remedies.
Turkey's Plant Variety legislation is in the form of draft law, and has not yet came into force.
For that reason protection of plant varieties and undisclosed information related to them are
provided through the general provisions of unfa ir competition stipulated in Turkish Commercial
Code.  (See the answer to question 18).
Those are Articles of the Turkish Commercial Code:
Section 56.  Unfair competition is the abuse of economic competition in any manner by
means of deceitful acts or other acts incompatible with good faith.
Acts incompatible with good faith are as follows:
1- discrediting others or their goods, their activities, or the products of their work or
their commercial affairs by means of wrong, deceitful or uselessly offensive statements;
2- giving information contrary to truth regarding the morality or financial capacity of
another person;
3- giving wrong or deceitful information regarding one's own situation, goods and the
products of one's work, one's commercial activity or commercial affairs of acting in the same
manner regarding third persons and putting them in a situation above their competitors.
4- acting as if one had obtained a distinction, degree or reward without having obtained
the same and trying to create thus the impression that one has exceptional capacities or using
false titles or professional names which are liable to create this impression.
5- trying to create confusion with the goods and products of the work, the activity or the
commercial undertaking of another person or having recourse to measures likely to create this
confusion, particularly using names, titles, marks, signs and similar distinctive means legally
used by another person, or selling or keeping for a reason other that personal needs, goods
giving place to confusion, knowingly or unknowingly.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 77
6- assuring or promising to the employees, agents or other assistants or third persons
advantages to which they are not entitled with a view or in a manner to secure advantages for
self or for others by inciting them to fail in their duty.
7- deducing the employees, agents or other assistants and getting them to divulge or
obtain the trading or manufacturing secret s of their employer or of his agents.
8- taking an illicit advantage from trading or manufacturing secrets obtained or learnt in
a manner incompatible with good faith or divulging them to others.
9- issuing certificates of good conduct or capacity, contrary to truth so as to deceive
persons of good faith.
10- failing to comply with the conditions of working life determined by laws, regulations,
contracts and professional or local customs which are also effective as regards competitors.
Juridical liability
(i) Miscellaneous clauses:
Section 58.  Anyone who, through unfair competition, suffers injury as regards his customers,
his credit, his professional reputation, his commercial undertaking, or his other economic
interests or is exposed to such a danger may demand:
(a) the establishment of the existence of unfair competition;
(b) the prevention of unfair competition;
(c) the suppression of the material conditions resulting from unfair competition and, if
unfair competition rests on untrue or deceitful statements, the rectification of these
statements;
(d) compensation of damages, if there is a fault;(e) the payment of moral damages in case of existence of the circumstances in Section 49
of the Code of Obligations.
The judge may also order the payment of the value of advantages which the defendant might
secure through unfair competition, as damages in favour of the plaintiff and in accordance
with the provision Paragraph (d).
Customers whose economic interests have been injured through unfair competition may also
open the actions indicated in the first paragraph.
Chambers of Commerce and Industry, craftsmen's associations, Exchanges and other
professional and economic unions empowered to protect the economic interests of their
members according to their statutes may also open the actions indicated under Paragraphs (a),
(b) and (c) where their members or the members of their branches have the right to sue inaccordance with the first and second Paragraphs.
Any judgment passed against a person in pursuance of sub-paragraphs (a) and (b) of the first
Paragraph shall also be enforceable against persons having obtained directly or indirectly the
goods which are the object of unfair competition.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 78
(ii) Liability of employer:
Section 59.  If unfair competition is committed by employees  or workers during their service
or work, the actions mentioned under sub-paragraphs (a), (b) and (c) of the first Paragraph
may be brought also against their employers.
The provisions of the Code of Obligations apply to actions mentioned under sub-paragraphs
(d) and (e) of the first Paragraph of the foregoing section.
(iii) Responsibility of the press:
Section 60.  If unfair competition has been committed through the press, the actions
mentioned under Paragraphs (a), (b) and (c) of Section 58 may be brought only against the
persons having written the article or given the advertisement.
(a) If the article or the advertisement have been published without the knowledge or the
approval of the author of the article or of the advertiser;
(b) If it is refused to disclose the identity of the person having written the article or given
the advertisement;
(c) If, for other reasons, it is impossible to find out the author of the article or the
advertiser or to sue them before a Turkish court;
These actions may be brought also against the editor in chief and if it is an advertisement,
against the advertising manager, if the editor in chief or the advertising manager have not
been designated or do not exist, against the publisher and if he has not been designated either,
against the printer.
Furthermore, if a fault can be attributed to the editor in chief the advertising manager, the
publisher or the printer, an action may be brought against the persons who are at fault,
without taking into account the foregoing order.
The provisions of the Code of Obligations apply for the actions indicated under sub-paragraph
(d) and (e) of the first Paragraph of Section 58.
(iv) Publication of the judgment
Section 61.  On application by the winning party the court may order the publication of the
judgment, after it has become final, at the expense of the losing party.  The judge shall
determine the form and the extent of the advertisement.
(v) Prescriptions
Section 62.  Actions indicated under Section 58 are barred by limitation at the and of one year
after the date at which the party entitled to sue has obtained information that these rights have
originated and in any case at the end of three years after these rights have originated.  Ifhowever a punishable act has been committed which is subject to a longer period of
prescription according to penal laws, this period shall also apply in civil actions.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 79
(vi) Conservation measures
Section 63.  Following the petition of the person en titled to sue, the court may decide that the
existing conditions be maintained, that the material situation resulting from unfaircompetition be suppressed as indicated under sub-paragraphs (b) and (c) of the first Paragraph
of Section 58, that unfair competition be prevented, that untrue or deceitful statements be
rectified and that the other necessary measures be taken, in accordance with the provisions of
the Civil Procedure Code regarding measures of conservation.
Penal liability
Punishable acts:
Section 64.(1) Anyone who commits willfully the acts of unfair competition indicated under
Paragraphs 1;  2, 4, 5, 6, 8 and 9 of Section 57;
(2) Anyone who intentionally supplies untrue  or deceitful information regarding his
personal situation, his goods, the products of his work, his commercial activity and his
business so as to have his proposals and offers preferred to those of his competitors;
(3) Anyone who seduces employees, agents and other assistants in order to get them to
disclose the trading and manufacturing secrets of his employer or principals;
(4) Anyone who learns from employers or agents that their worker employees or agents
commit an act of unfair competition liable to be punished, when doing his work, and does not
prevent  this act or does not rectify statements contrary to truth;
Shall, on a complaint made by one of those who are entitled to bring a civil action under
section 58, be sentenced by the criminal court to imprisonment for a term of one month to one
year or to a  fine of 500 to 1.000 liras, or to both penalties.
Anyone who continues the act of unfair competition, unchanged or with accessory changes,
not withstanding the final judgement concerning the prohibition of unfair competition shall be
liable to imprisonment for a minimum term of six months and to a heavy fine of 5.000 to
10.000 liras and the offender shall be prosecuted ex officio.
21. Please indicate whether decisions on the merit in court proceedings are provided in writing
and if those written opinions are available to the public so that people can become familiar with the
law.
The Court of Cassation publishes a monthly journal based on decisions on the merit in court
proceedings. Civil and criminal decisions in all fields including intellectual property disputes, takenby the lover courts and the appeal verdict of the Court of Cassation have been published and made
available to the public through this journal.
22. Please provide statistical information related to civil copyright, trademark, geographical
indication, industrial design, patent, integrated circuit layout-design, and trade secret enforcementfor each of the years 1998 and 1999, including th e number of cases filed; injunctions issued;
infringing products seized; infringing equipment seized; cases resolved (including settlement); and
the amount of damages awarded.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 80
The statistical questions7 on civil enforcement on copyright, trademark, geographical
indication, industrial design, patent etc shall be forwarded to the courts for the year 2000 and later.
For that reason the respond to this question could not been provided at this stage.
Since entering into force in 1996 of Article 21 of the previous Customs Law No. 1615 and
subsequently the Customs Law No. 4458 (Article 57 thereof) (document IP/N /1/TUR/C/2), which is
currently in force, 18 right holders have applied to  customs administration for the suspension of the
customs procedure of the goods being alleged to bear counterfeit trademarks.
Three thereof were in generic manner (not indicating specific targets nor presenting data) and
the customs authorities have been cautious during 30 days in accordance with Article 178 of theRegulation laying down the implementing provisions of Customs Law No. 4458.  Fourteen
applications have resulted in suspensions of the customs procedures upon submissions of court
decisions, three cases thereof have been disposed of in favour of defendants, accordingly the goods
have been released by the customs administration, and 1 case thereof has been disposed of by final
judgement in favor of the applicant; other cases are still ongoing. In one case the applicant haswithdrawn his application,
It is hereby provided the cases for the years 1998 and 1999:In 1998,- two right holders applied to customs administration for suspension of the customs
procedure of the goods allegedly bearing counterfeit trademarks and the customs
procedures were suspended upon the submission of court decisions by the applicants.
One case of them was disposed of by final judgement in favour of defendant and thegoods released accordingly.
In 1999,- six right holders applied to customs administration for suspension of the customs
procedures of the goods allegedly bearing counterfeit trademarks.  Five customs
procedures thereof were suspended upon the submission of court decisions by theapplicant.  In one case, the applicant withdrew his application, and one case was
disposed of by final judgement in favour of the applicant.
Turkish Customs Administration (Undersecretariat of Customs) intends to promote
possibilities of the application right provided under customs legislation and to make it one of the bestknown instruments of protection in intellectual and industrial production sectors.
23. Please provide statistical information related to criminal enforcement in the area of copyright
piracy and trademark infringement for each of the years 1998 and 1999, including the number of
raids, prosecutions, convictions, and the amount of fines and/or jail terms (including whether the fines
were paid and whether the jail term was actually served or was suspended) and any other information
establishing that be criminal system operates effectively to deter copyright piracy and trademark
counterfeiting.
Statistical information related to criminal enforcement on patents, designs, geographical
indications, trademarks, cinematography works and literary and artistic works.
                                                     
7 Such data has been prepared by the General Dir ectorate of Criminal Records and statistics of the
Ministry of Justice.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 81
Number of criminal actions8 brought in 1997, 1998 and 1999.
1997 1998 1999 Acquittal
(1999)Conviction
(1999)
Patents 49 31 8 48% 24%
Designs 3 80 0 - -
Geographical
Indications000- -
Trademarks 889 1550 1199 18% 40.4%
Cinematographic
Works144 151 115 27% 29.7%
Literary and Artistic
Works65 234 313 24.4% 40.4%
Average duration for criminal cases in 1998 and 1999:
1998 1999
Patents 281 days 496 days
Designs 0 0
Geographical Indications 0 0
Trademarks 265 days 322 days
Cinematographic Works 316 days 295 days
Literary and Artistic Works 200 days 272 days
                                                     
8 Statistical data questions organized so far (by th e General Directorate of the Criminal Records and
Statistics of the Ministry of Justice) are not appropriat e to respond to the questions on raids and details of the
amount of fines and/or jail terms for each individual decision. The current data is based on the final decision'sbeing acquittal or conviction.IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 82
Correlation of the criminal actions according to the geographical area of Turkey:
1998
Geographical
AreaPatents Designs Geographical
IndicationsTrademarks Cinemato-
graphic
WorksLiterary and
Artistic
Works
Mediterranean 0 0 0 338 47 14
E a s t  A n a t o l i a 700265
Egean Region 2 0 0 222 8 34
South East 0 78 0 18 28 0
Central
Anatolia4 0 0 165 17 32
Black Sea
Region10 0 0 56 11 11
Marmara
Region8 2 0 749 34 138
Total 31 80 0 1550 151 234
1999
Geographical
AreaPatents Designs Geographical
IndicationsTrademarks Cinemato-
graphic
WorksLiterary and
Artistic
Works
Mediterranean 0 0 0 340 3 9
East Anatolia 0 0 0 7 17 3
Egean Region 1 0 0 243 15 43
South East 0 0 0 36 11 1
Central Anatolia 0 0 0 112 14 73
Black Sea
Region100 6 5 1 6 8
Marmara Region 6 0 0 395 34 176
Total 8 0 0 1199 115 313IP/Q/TUR/1, IP/Q2/TUR/1,
IP/Q3/TUR/1, IP/Q4/TUR/1
Page 83
24. Please describe any new initiatives that are planned to improve enforcement of intellectual
property rights in Turkey, particularly initiatives related to criminal enforcement.
Arrangements made with the concerned Draft have been realized in harmony with the
Directives of the Council, the Rome and Berne Conventions and the TRIPS Agreement to which
Turkey is a party, the WIPO Copyrights Agr eement and WIPO Performances and the Phonograms
Agreement to which Turkey has been planning to become a party and with the purpose of providing
full enforcement of Intellectual Property Rights.
With the concerned Draft, in full harmony especially with this purpose, the below mentioned
are aimed:
(i) Increasing the punishment of imprisonment and pecuniary punishments and penalties
to be awarded in case of repetition of the same offence.
(ii) Establishment of Specialized Courts.
(iii) Carrying out the arrangements related to seizure of the pirate products in customs.
(iv) Closing of the business places carrying out piracy acts.
(v) Establishment of supervisory boards having ex officio  prosecution authority in order
for prevention of piracy acts.
Furthermore, the incorporation of the Institut e of Intellectual Property Rights, having an
institutional structure like the Turkish Patent Institution, in order to develop the Intellectual Property
System and establish an institution specialized in prosecution of rights.
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