RESTRICTED WORLD TRADE
ORGANIZATIONIP/C/W/227/Add.2
10 January 2001
(01-0094)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Turkey to questions posed by Canada
Addendum
By means of a communication from the Permanent Mission of Turkey, dated
30 November 2000, the Secretariat has received the following responses to questions posed by
Canada which were circulated in document IP/C/W/225.
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1. We understand that draft amendments are before the Turkish Parliament on copyright.
(a) When are such amendments  likely to be implemented?
The draft for Amendment of Certain Articles of Law on Intellectual and Artistic Works
prepared in order to carry out the necessary amendm ents within the urging provisions due to national
and international 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 GrandNational 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 TRIPSobligations?
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:
Draft Law Law International Conventions, Treaties and Council Directives
Article 4 Article 6 TRIPS Agreement, Article 10.2
Article 12 Article 19 Berne Convention, Article 6 bis
Article 13 Article 22 Berne Conv ention, Article 9(1) and 1(4)
Article 14 Article 23 Council  Directive 92/100/EEC;
Berne Convention,  Article 14;TRIPS Agreement;IP/C/W/227/Add.2
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WIPO Copyright Treaty, Articles 6 and 7.
Article 15 Article 25 Berne C onvention, Articles 11 and 11 bis;
TRIPS Agreement, Article 9;
WIPO Copyright Treaty, Article 11
Article 18 Article 34 Berne Convention, Article 2(5)
Article 19 Article 37 Berne Conven tion, Article 2(7) and 2(8);
Rome Convention, Article 15
Article 26 Article 71 TRIPS Agreement, Article 61
Article 27 Article 72 TRIPS Agreement, Article 61
Article 28 Article 73 TRIPS Agreement, Article 61
Article 30 Article 76 TRIPS Agreement, Article 43
Article 31 Article 77 TRIPS Agreement, Articles 51 - 60
Article 32 Article 80 European Council Directive 92/100/EEC;
European Council Directive 93/83/EEC;
Rome Convention, Articles 7, 8, 10, 12, 13 and 15;
WIPO Performances and Phonograms Treaty, Articles 7 - 15 and 18;
TRIPS Agreement, Article 14.
Article 33 Article 81 TRIPS Agreement, Article 61
Article 34 Article 82 Rome Convention,
General provisions concerning the TRIPS Agreement.
Article 35 Annex Article 2 Berne Convention, Articles 7 and 8
Article 37 Annex Article 4 WIPO Copy right Treaty, Articles 11 and 12,
WIPO Performances and Phonograms Treaty, Articles 18 and 19
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", 11th sentence of first paragraph has been reorganized in order todifferentiate 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 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 writershave 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 appli cable 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.IP/C/W/227/Add.2
Page 3
- 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 transferredto this section 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 thevariations 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 shallenable 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" hasbeen 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
of education and instruction and only in places like classrooms and theatre hallsdedicated 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.IP/C/W/227/Add.2
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- 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 author and 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 theapplicable 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 hasbeen 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 th e 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 outin the last paragraph of the same article against persons performing or displaying a
work or exhibiting such work on public 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 placingIP/C/W/227/Add.2
Page 5
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 be dissuasive; 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 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
or 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 ofintrusion to intellectual rights may be adopted ex officio and in case of repetition of
the same offence, the penalties shall be in creased 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 the obligation to documenttheir 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 pecuniarypunishments 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 indifferentiation 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 toIP/C/W/227/Add.2
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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.
(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 ofIntrusion 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 orcodes representing this information in the way determined 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 unauthorized changes ofthis 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 theTurkish 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?IP/C/W/227/Add.2
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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 produced after 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 toaffiliated 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 No. 4110 became effective creates an inequality in works that are subject to shorterprotection 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 Literary and Artistic Works to which our country is a party.
Furthermore, cinematographic works produced before 12 June 1995, validity date of the 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 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 No. 5846 and a revocable
protection has been established; thus harmonisation with national and international legislation has
been established.
The arrangement within the second paragraph gran ts 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 aIP/C/W/227/Add.2
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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 righ t 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 authorship of cinematographic
works are applicable to cinematographic works the production of which is started
after 12.06.1995 when the Law No. 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 willful trademark counterfeiting with the Arti cle 61/A which is in line with Article 61 of the
TRIPS 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 and 2 years and a fine between
300 million and 600 million Turkish Lira:
False indication about the identity of th e trademark owner in the course of a
trademark application.  Removal without aut hority 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 the trademark 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.IP/C/W/227/Add.2
Page 9
(c) 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, the Act Amending the Criminal Code (No 4421) introduced a new
system to raise the fines (not only in copyright and industrial property legislation but all legislation
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 ratio was 52.1% for the year 1999.
As to 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 afine from 300 million to 600 million Turkish Liras in accordance with Articles 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 (b).
In the current Law, seizure, destructure 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 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 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 alsoIP/C/W/227/Add.2
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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 in
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 internationalconventions have equal value of a national Law.
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