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Cablegate: New Intellectual Property Legislation

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 13 ANKARA 002335

SIPDIS


DEPT FOR EB, EB/TPP/MTA/IPC AND EUR/SE
DEPT PLEASE PASS USTR FOR BPECK/LERRION
USDOC FOR ITA/MAC/DDEFALCO
DEPT PASS LIBRARY OF CONGRESS
DEPT PASS USPTO FOR ELAINE WU


E.O. 12958: N/A
TAGS: ETRD KIPR TU
SUBJECT: New Intellectual Property Legislation


Ref: Ankara 2031


1. In March, the Turkish Parliament enacted copyright-
related legislation which bans street sales of all
copyright products, authorizes law enforcement
authorities to take action without a complaint by the
rightholder, but reduces sanctions for pirates (reftel).
The following unofficial translation of the law was
provided by AMPEC, an industry association affiliated
with the Motion Picture Association.


2. Begin AMPEC Translation:


LAW ON THE AMENDMENT OF VARIOUS LAWS
LAW No. 5101
Passed: 03.03.2004
Published in the Official Gazette: Date 12.03.2004,
Issue 25400


Article 1 - The following paragraph has been added to
Paragraph 11 of Article 15 of the Municipal Law No. 1580
dated 3.4.1930:
"Not to give permission for and to prevent the sale of
carrying materials such as books, cassettes, CDs, VCDs
and DVDs on which works, performances and phonograms
protected within the framework of Law No.5846 on
Intellectual Property and Works of Art in the places
mentioned in this paragraph and to confiscate and hand
over those the sale of which has been attempted to the
authorities."
Article 2 - The last paragraph of Article 21 of the Law
on Municipal Income, No.2464, dated 26.05.1981 has been
amended as follows:
The tax stipulated as per Sub-subparagraphs (1) and (2)
of Subparagraph (1) on the showing of domestic and
foreign films will be calculated as prescribed in
Article 22, Subparagraph (1) of this Law and deposited
in the custody of the local fiscal office or accounting
office by close of business on the fifteenth day of each
month. A special seal will be imprinted on the tickets
by the municipality upon the presentation of the bank
receipt indicating that the payment has been effected.
The provisions of Law No. 6183 on the Collection of
Public Debts will be applied to those who do not pay. Of
the amount collected in the aforementioned offices, 75
percent will be transferred to the account of the
Central Accounting Office of the Ministry of Culture and
Tourism and 25 percent to the account of the
municipality concerned by close of business on the
fifteenth day of the following month.
Article 3 - The following paragraph has been added to
Article 52 of Law No. 2464 on Municipal Income dated
26.05.1981:
The sale of carrying materials such as books, cassettes,
CDs, VCDs and DVDs on which works, performances and
phonograms protected within the framework of Law No.
5846 shall not be permitted in places mentioned in the
first paragraph.
Article 4- Article 3, Subparagraph (v) of Law on the
Establishment and Broadcasts of Radio- Television
Institutions No. 3984 dated 13.4.1994 has been amended
as follows:
"v) Authors and/or affiliated right-owners: Real or
legal persons whose moral and financial rights over the
works, performances, phonograms and/or productions are
arranged within the framework of Law No. 5846 on
Intellectual Property Rights,"


Article 5- Subparagraph (o) of the second paragraph of
Article 4 of Law No. 3984 has been amended as follows:
"(o) Rights granted to authors and affiliated right-
owners by Law No.5846 on Intellectual Property and Works
of Art shall not be violated."


Article 6- Article 37 of Law No. 3984 has been amended
together with its heading as follows:
"Provisions Concerning the Use of Works, Performances,
Phonograms and/or Productions Broadcast and/or
Transmitted by Radio-Television Institutions
Article 37- Radio-television institutions shall make
contracts with authors, affiliated right-owners, or the
professional unions in which such persons are members in
order to obtain permission to use the latter's works,
performances, phonograms, and productions in their
broadcasts and/or transmissions; and shall pay the cost
of the financial rights agreed in such contracts. This
contract and the payments shall be made within the
framework of Law No.5846 on Intellectual Property and
Works of Art. The provisions in Article 33 of this Law
shall also be applied to broadcasting organizations that
violate the provisions in this article."


Article 7- The first and second sentences of the last
paragraph of Article 6 of Law No. 3257 on
Cinematographic, Video and Musical Works dated
23.01.1986 have been changed as follows:
"The Inspection Board comprises a total of nine members
with the Ministry representative as the chairperson, one
member each from the ministries of Education, Foreign
Affairs and Internal Affairs; two members to be selected
by the Ministry of Culture and Tourism from among
individuals recommended by the professional unions
concerned; a sociologist, a psychologist, and a child
development expert to be identified by the Ministry who
are faculty members at a university. The Board takes
decisions based on majority votes of five to four.
The Evaluation and Classification Board takes decisions
based on simple majority. In the event there is a tie
in the votes the vote of the chairperson is adhered to."


Article 8- Article 12 of Law No. 3257 has been changed
together with its heading as follows:
Penal provisions to be applied to violations of the
provisions on the use of authenticity stickers
(banderoles):
Article 12 - The penalties prescribed in Article 81 of
the Law No.5846 on Intellectual Property and Works of
Art shall be imposed on those whose actions violate the
provisions in this Law on the use of banderoles.


Article 9- The following Subparagraph (1) has been added
to Article 1/B of Law No.5846 on Intellectual Property
and Works of Art dated 5.12.1951:
1) Ministry: the Ministry of Culture and Tourism


Article 10 - The last paragraph of amended Article 13 of
Law No. 5846 dated 5.12.1951 on Intellectual Property
and Works of Art has been amended as follows:
"Film producers who realise the initial fixing of films
and phonogram manufacturers who undertake the initial
fixing of sounds record and register their productions
encompassing cinematographic and musical works without
aiming to establish rights but with a view to preventing
the violation of their rights, facilitating proof in
determining their right of ownership and following up
their rights of benefit. With the same purpose, upon
the request of authors, works can be recorded and
registered and the works as well as rights of benefit
concerning financial rights can be registered. The
Ministry may not be held responsible for these
procedures which shall be accomplished on the basis of
declaration. However, those who make false declarations
on financial and moral rights they know or ought to know
to be non-existent or do not own in the procedures to
serve as a basis for the recording and registration
procedures shall be subject to the civil and criminal
sanctions prescribed in the present Law. All fees
pertaining to all recording and registration procedures
undertaken within the scope of this Law are determined
by the Ministry. The procedures and principles for the
recordings and registrations, the determination of the
respective fees, and other relevant points shall be
stipulated in a Regulation to be issued by the
Ministry."


Article 11 - The amended Article 41 of Law No. 5846 has
been changed as follows along with its title:
"4. Principles on the Use and/or Transmission of Works,
Performances, Phonograms, Productions, and Broadcasts in
Public Places
Article 41 - Public places with or without an entrance
fee shall obtain permission from right owners or the
professional unions in which such persons are members by
signing contracts in accordance with Article 52 on the
use and/or transmission of works, performances,
phonograms, productions and broadcasts; and shall effect
the payment for the financial rights agreed in such
contracts in accordance with the provisions in this
article.
Public places using and/or transmitting works,
performances, phonograms, productions and broadcasts
shall be classified or declassified by taking into
consideration the status of the district where they are
located; the quantitative and qualitative
characteristics of the public place; whether the works,
performances, phonograms, productions and broadcasts
that are the subject of intellectual property are an
integral part of the product or service provided in the
premises; whether they contribute to such product or
service; and the like.
Professional unions of authors and/or affiliated right-
owners shall determine tariffs concerning payments to be
made for the use and/or transmission of works,
performances, phonograms, productions and broadcasts
based on their classification in the sectors they are
operating in. Contracts between the professional unions
and the premises shall be concluded on the basis of
these tariffs or other rates to be negotiated between
the parties.
In order to enable the implementation of the provisions
of this article:
1. Professional unions shall be obligated to convey all
information pertaining to their members, and to the
works, performances, phonograms and productions they
represent to the Ministry. This information shall be
updated every three months and shall be made available
to the parties concerned in a joint data base created by
the Ministry
2. Professional unions set up in the field of authors of
works; or professional unions set up in the field of
affiliated rights; or professional unions working in the
same field can come together and determine joint tariffs
based on a protocol. Joint tariffs shall be binding for
professional unions that are signatories to a protocol.
Professional unions shall convey to the professional
organisations representing the users and set up by law
in the nature of a public institution, and to the
Ministry; and announce to the public at large the
tariffs or joint protocols in the ninth month of every
calendar year. Public premises can negotiate the tariffs
or joint tariffs through the professional organisations
of which they are members and to whom they provide
binding documents of authorization concerning holding
discussions and concluding agreements. However, in the
event that fixed tariffs are established, the public
premises can hold negotiations and conclude contracts
only through the agency of the professional
organizations.
In the event the public premises or professional
organizations and the professional unions cannot reach a
compromise concerning tariffs or joint tariffs and a
contract cannot be concluded in the tenth month,
professional unions and/or professional organizations
may request, not later than the end of the month, that
these tariffs be discussed by a "Reconciliation
Committee" to be set up by the Ministry.
The "Reconciliation Committee" shall be set up by the
Ministry to discuss the tariffs upon the request of one
of the parties and upon the Ministry's deeming it
appropriate within fifteen days of the date the request
is made. It shall comprise one representative from the
Ministry, two from the Competition Board, and one
representative from each of the professional unions and
of the professional organisations representing the
users. The Ministry representative shall also be the
chairperson of the committee. Substitute members in the
same number as primary members shall be selected by the
same procedure. The secretarial work of the committee
shall be undertaken by the relevant section of the
Ministry.
The Committee shall prepare its report concerning the
determination of the tariffs within 15 days of the date
it has been formed and conveys it to the Ministry and
the parties concerned. The public premises and
professional unions may conclude contracts on the
tariffs announced by the professional unions or agreed
by negotiation within fifteen days from the date the
Committee reports its decision.
Lawsuits may be filed against tariffs or joint tariffs
determined by professional unions. Premises that want
to use the works, performances and/or phonograms during
the period concerning the tariff against which a lawsuit
has been filed may do so by depositing in the joint bank
account opened for professional unions the tariff at
issue every three months. The use and/or transmission of
works, performances, phonograms, productions and
broadcasts by public premises that have not yet
concluded any contracts or are going to conclude a
contract for the first time shall be contingent upon the
permission of the relevant professional unions. The
amounts paid in this manner until the completion of
litigation shall be deducted from the tariff determined
by the court.
The principles for the determination of tariffs as set
out in the third paragraph of Article 42/A of this Law
shall be applied in the determination of tariffs and the
settlement of disputes.
Real or legal persons who have rights over the works,
performances, phonograms, productions and broadcasts
used and/or transmitted by the premises may claim
payment for their use and/or transmission only through
the agency of the professional unions in which they are
members. The application of this paragraph shall not be
obligatory in the case of cinematographic works.
Principles and procedures pertaining to matters such as
classification, the fees to be taken by the Ministry for
applying to the Reconciliation Committee, the operation
of the Reconciliation Committee, and other principles
and procedures concerning the implementation of this
article shall be stipulated in a Regulation to be issued
by the Ministry."


Article 12- The phrase, "and those who reproduce and
distribute non-periodical publications using the rights
on scientific/literary works as per Article 10 of this
Law by taking over the use of financial rights from the
author or the right-owner by contracts concluded in
accordance with Article 52 of this Law," has been added
to follow the phrase, "Authors and affiliated right-
owners" in the first sentence in the first paragraph of
Article 42 of Law No. 5846; and the term, "real persons"
appearing after the phrase, "four times the primary
member number" in the second sentence of the same
paragraph has been deleted.


Article 13 - The following Articles 42/A and 42/B have
been added to follow Article 42 of Law No. 5846:
2. Principles Concerning the Obligations of Professional
Unions and Tariffs"
Article 42/A - Professional unions founded in order to
manage the rights with the aims stipulated in Article 42
of this Law shall have the following obligations:
1. To forward to the Ministry all information
pertaining to the works, performances, phonograms,
and productions and members that they represent and to
update every three months this data which is which is
open to whom it may concern;
2. To equitably manage the rights emanating from the
activities of its member right-owners;
3. To distribute to right-owners the revenue from
their activities pertaining to the management of the
rights of their members in accordance with distribution
plans;
4. To provide information about the works,
performances, phonograms, and productions they represent
to anyone requesting it upon a written request;
5. To act equitably in making contracts regarding the
rights they manage; to offer the discounts or
convenience in payment that they find in order as far as
their own material and moral interests are concerned;
6. To determine in good time the tariffs for the
rights they manage in order to conclude a contract, and
to announce without delay the tariffs fixed and any
amendments thereto;
7. To have their accounts verified by sworn auditors.
The records of the Radio and Television Supreme Council
shall be taken as the basis in the implementation of the
above Article with regard to the broadcasts of
radio/television organizations.
In determining the tariffs, the following factors should
also be taken into account along with a consideration
for the fact that the tariffs are determined at
reasonable levels by taking into consideration their
adaptability to the social and economic conditions of
international practice, and changes in technology:
-- avoiding an impact that is destructive to the
composition of the sectors in which the works,
performances, phonograms, productions, and broadcasts
are created and used;
-- that impedes production and consumption;
-- that is detrimental to generally accepted practice;
-- avoiding the emergence of conditions disrupting
competition;
-- the classification that has been made;
-- product prices in the relevant sectors;
-- the share of these sectors in the gross national
product;
-- the frequency of use and/or transmission of the
works, performances, phonograms, productions, and
broadcasts;
-- whether the payment is to be made in a lump sum or on
the basis of unit prices;
-- payment plan and the like.
The unions that operate in the same field and/or sector
may act together in determining tariffs, concluding
contracts and other principles and procedures regarding
the implementation of this Law.
In the event that a joint tariff has been made,
professional unions operating in the same field shall
have to determine and communicate to the Ministry at the
beginning of each calendar year, to serve as a basis for
the tariffs, their capacity of representation in their
field and the ratios of usage of the works,
performances, phonograms, productions, and broadcasts
they represent. In the event an agreement on these
ratios cannot be reached or if these ratios are not
conveyed to the Ministry, a committee to be formed by
the Ministry shall determine these ratios. Until such
ratios are determined, the users that have concluded a
contract shall deposit the amounts they have to pay in a
depository to be identified by the court upon the
Ministry's request. After the operating expenses of the
committee have been deducted, the amount that has
accumulated in the depository shall be divided among the
professional unions concerned in proportions to be
determined by the committee or, should the unions reach
an agreement among themselves at any stage, in the
proportions the unions determine among themselves. The
committee shall be composed of one member each from the
Ministry, the Competition Board, and the professional
unions concerned. The Ministry representative shall be
the chairperson. Appeal from the decisions of the
committee is permitted and the relevant specialized
court shall have jurisdiction.
The Ministry may request the court to impose a lien on
the distribution account of professional unions
determined to have defaulted in fulfilling their
obligations regarding the submission of information as
per this Article until such time as they fulfil these
obligations.
The following up of all the rights of authors or
affiliated right-owners who are members in a
professional union pertaining to all the works,
performances, phonograms, productions, and broadcasts
that have become public property or been published shall
be done on the strength of a document of authorization
to be issued in the name of the professional union
concerned. The procedures and principles concerning the
documents of authorization shall be prescribed in a
Regulation to be issued by the Ministry.


3. Inspection of Professional Unions
Article 42/B - Professional unions are subject to the
administrative and financial inspection of the Ministry.
While the Ministry itself can at any time inspect
whether the professional unions are fulfilling their
duties and obligations arranged by this law, it may also
request the professional unions to have private
inspection organizations undertake the said inspection.
A copy of the inspection report is to be submitted to
the Ministry.
During inspections it is mandatory that any books,
documents and information requested by the inspectors be
shown or given, and inspectors' requests to check the
safes or cashier's offices and to enter management
premises, branch offices and extensions are met.
In the event the professional unions are determined:
1. to fail to meet their responsibilities and
obligations stipulated in Articles 42 and 42/A of this
Law and in this Article,
2. not to be collecting fees or distributing the
proceeds in conformity with contracts, or making
incorrect and unfair distribution,
3. not to be setting the tariffs in accordance with
the stipulations in the third paragraph of Article 42/A
of this Law,
they shall be warned in writing by the Ministry once.
In the event the shortcoming has not been dealt with
within thirty days from the date the notice of warning
has been served, the union shall be warned a second
time.
In the event the shortcomings mentioned in the above
paragraph still have not been corrected within the
thirty days following the second warning, or when
misappropriation in the union records and in other union
affairs and procedures has been determined as a result
of inspections, the Ministry invites members for an
extraordinary Committee meeting to be held within three
months at the latest. Those found to be at fault in the
affairs and actions of the union shall be withdrawn from
their posts as a precaution until the extraordinary
Committee meeting is held, with replacements being
appointed by the Ministry or the alternate members whose
turn has come being called in.
The provisions of Articles 42 and 42/A of this Law and
this Article shall also be applied to federations to be
established within the framework of Article 42.


Article 14- The amended Article 43 of Law No. 5846 has
been changed as follows along with its title and the
numbers in the headings of the articles following
Article 43 have been renumbered to preserve the sequence
in Part Three of Law No. 5846:
"4. Principles concerning Broadcast and/or Transmission
of Works, Performances, Phonograms and Productions
Article 43- Radio and Television institutions as well as
satellite and cable broadcast institutions and those
that will broadcast and/or transmit programs via future
technological means must obtain prior authorization from
right-owners concerning staged works such as opera,
ballet, theatre and other stage works that they are
going to use in their broadcasts.
These institutions must obtain authorization through the
conclusion of an agreement in accordance with Article 52
with professional unions operating in the relevant
fields for works, performances, phonograms and
productions other than staged works and make payments
concerning the said use and/or transmissions to these
unions and must forward lists concerning the works,
performances, phonograms and productions they use to
these unions.
Radio and television institutions operating within the
framework of Law No. 3984 dated 13.04.1994 on the
Establishment and Broadcasts of Radio and Television
Institutions shall be classified by the Radio and
Television Supreme Council while other bodies that
broadcast and/or transmit programs without being subject
to said Law shall be classified by the Ministry.
Authors and/or affiliated right-owner professional
unions in the sectors they operate in determine the
tariffs concerning the use and/or transmission of the
works, performances, phonograms and productions based on
the classifications made. Contracts between the
professional unions and organizations are concluded
based on such tariffs or the tariffs that have been set
by negotiation between the parties.
The provisions of the fourth and thirteenth paragraphs
of Article 41 of this Law shall be applied in matters
pertaining to the obligation of professional unions to
submit reports on their represented works, performances,
phonograms, and productions and their members; the
determination, announcement, and negotiation of the
tariffs; the conclusion of contracts; the settling of
disputes, and the like. However, the application of the
last sentence in the sixth paragraph of Article 41 is
not mandatory as far as broadcast and/or transmission
organizations are concerned.
To the extent the application of the tenth paragraph of
Article 41 is concerned, the Turkish Radio and
Television Institution may use works, performances,
phonograms and productions in its broadcasts by
depositing every three months one quarter of the tariff
set by the professional unions.


Article 15- The first and last paragraphs of amended
Article 44 of Law No. 5846 have been changed as follows:
"In order to protect intellectual property rights and to
follow them up effectively, places of business that
produce and/or engage in the recording, reproduction and
sale of or disseminating or making available to the
public in any way the materials used in the fixing and
reproduction of intellectual property and works of art
shall be certified by the Ministry in return for a fee.
Places of business identified by the Ministry shall be
obligated to keep software approved by the relevant unit
of the Ministry and hardware conforming to criteria to
be stipulated by the Ministry, develop the necessary
infrastructure and regularly report the actions they
have realized to the Ministry in terms of each calendar
year. These places of business and financial right-
owners shall also be jointly and severally obligated to
ensure that signs and serial numbers to be stipulated by
the Ministry and codes conforming to international
criteria are placed on the carrying materials."
The procedures and principles to be applied in the
implementation of this Article and the fees to be
charged shall be determined by a Regulation to be issued
by the Ministry.


Article 16- The first paragraph of Article 45 of Law
Number 5846 has been changed as follows:
"In the event of a disproportionately large difference
between the price of the originals of the works of art
enumerated in Article 4 of this Law excluding
architectural works, their copies produced in limited
numbers by the author in person or by others under the
author's control and with his/her permission and
considered to be original works for having been signed
or otherwise marked by the author, and one of the
original manuscripts of the works of an author or
composer enumerated in Subparagraph 1 of Article 2 and
in Article 3, and their preceding price as they
successively change hands by sale at an exhibition or an
auction or in a shop engaged in the sale of such items
or by other means during their protection period once
they have been initially sold by their author or his/her
heirs, the real or legal person effecting the sale will
be obligated to pay an appropriate share of the
difference in sale value at each sale to the author of
the work or, in case the latter is deceased, to his/her
legal heirs up to the 2nd degree (inclusive) and spouse
in accordance with inheritance provisions or, in their
absence, to the relevant professional union within the
framework of principles and procedures to be stipulated
in a decree to be issued by the Council of Ministers."
Article 17- The paragraph following Subparagraph (5) of
Article 71 of Law No. 5846 has been amended as follows:
"will be sentenced to imprisonment from two years to
four years, or heavy fine between TL 50 billion and TL
150 billion, or both depending on the severity of the
damages."
Article 18- Article 72 of Law No. 5846 has been amended
as follows:
Article 72 - Those who act in contravention of this law
by deliberately:
1. selling or distributing the copies of a work or an
adaptation by reproducing them despite an existing
agreement with the right-owner, in contrary to the
provisions of the said agreement, shall be sentenced to
imprisonment from three months to two years and a heavy
fine between TL 10 billion and TL 50 billion or both
considering the severity of the damages;
2. SELLING A WORK OR ITS REPRODUCED COPIES IN THE
PLACES INDICATED IN THE SEVENTH PARAGRAPH OF ARTICLE 81
OF THIS LAW WITHOUT THE PERMISSION OF THE RIGHTS OWNER
SHALL BE SENTENCED TO IMPRISONMENT FROM THREE MONTHS TO
TWO YEARS AND A HEAVY FINE BETWEEN TL 5 BILLION AND TL
50 BILLION OR BOTH CONSIDERING THE SEVERITY OF THE
DAMAGES;
3. and without the permission of the rights owner:
a - adapting a work in any manner,
b - reproducing a work in any manner,
c - distributing a work in any manner,
d - importing copies of a work into the country through
legal or illegal ways and make them an object of trade
in any manner,
e - displaying or presenting a work publicly, organizing
for such a display or disseminating it or assisting in
its dissemination by such means as used for the
transmission of all kinds of signals, sounds, and/or
images including digital transmission,
shall be sentenced to imprisonment from two years to
four years and heavy fine between TL 50 billion and TL
150 billion or both considering the severity of the
damages.
Article 19- Article 73 of Law No. 5846 has been amended
as follows:
Article 73 - The following provisions shall be applied
to crimes other than those
indicated in Articles 71, 72, 80, 81 of this Law.
1) Those who deliberately,
a - Keep in their possession for commercial purposes
copies of a work they know, or ought to know, to have
been reproduced in contrary to the provisions of this
Law;
b - Transfer or give or put up for security or make the
object of any transaction a financial right or a license
they know to be non-existent or inaccessible to them;
c - Keep in their possession for commercial purposes or
distribute a technical instrument used solely for the
purpose of disabling or removing without authorization
a technical device applied solely in order to protect a
computer program;
shall be sentenced to imprisonment from two years to
four years and a heavy fine between TL fifty billion and
TL one hundred and fifty billion or both considering the
gravity of the damages.
2) Those who deliberately reproduce or disseminate
reproduced copies, phonograms, and productions of works
that have been reproduced and distributed in accordance
with the provisions of this Law by way of making and
distributing facsimiles along with the differentiating
title, trademark and identifying information of the
reproduction and distribution right-owners, by means of
signs, writing, sound, moving or still images or
employing devices or methods used for data reproduction
shall be sentenced to imprisonment from three years to
six years and heavy fine between TL twenty billion and
TL two hundred billion or both considering the gravity
of the damages.
Article 20- The phrases "and 73" appearing in the first
sentences in the first and third paragraphs of Article
74 of Law No. 5846 have been changed to "73 and 80."
Article 21 - The first and third paragraphs of amended
article 75 of Law No. 5846 have been amended as follows
and the following paragraph has been added to follow the
third paragraph and the following sentence has been
added to the last paragraph:
"Prosecution concerning the offences indicated in
Articles 71, 72, 73 and 80 shall depend upon a complaint
being filed. Upon a complaint being filed, public
prosecution shall be initiated provided that the right-
owners submit the documents and/or copies in evidence of
their rights to the Public Prosecutor. A decision of non-
prosecution shall be issued in the event these documents
and/or copies are not submitted. The provisions of
Article 76 of this Law shall be reserved. Subparagraph
(8) of the first paragraph of Article 344 of the Code of
Criminal Procedure, No. 1412 shall not be applied to the
implementation of the provisions of this Article."
"In the event of a violation of the rights of authors,
affiliated right-owners, and other right-owners, and
upon a complaint to be filed by those authorized to file
a complaint, the Public Prosecutor of the area where the
violation occurs and its consequences are realized may
request the competent court to confiscate the copies or
publications that have been reproduced without
permission, to have them destroyed, to have the
technical equipment used in this connection to be sealed
off, and to close down the premises where the
unauthorized reproduction and sale has taken place."
"In the event authors or right-owners fail to file a
complaint with the competent court within fifteen days
of the confiscation of the copies and non-periodical
publications, the competent court shall decide upon the
request of the Public Prosecutor to have enough number
of copies kept that would form a basis for the case and
the rest destroyed or, if their recycling is technically
possible for re-use as raw material, sold as raw
material in their present condition or after their
characteristics are degraded in such a way as to
preclude their re-use. The provisions of the amended
Article 68 of this Law shall apply in the event the
authors or right-owners do apply or file a complaint
during the stipulated time period." The procedures and
principles pertaining to the destruction of confiscated
copies and non-periodical publications, their re-use as
raw material, and their sale as raw material shall be
determined by a Regulation to be issued by the Ministry.
Sentences of imprisonment imposed upon a recurrence of
the offence may not be deferred or converted to a fine
or a cautionary judgment. The provisions of the Law on
the Struggle Against Organized Crime Aimed at Unlawful
Gain and Benefit shall be applied to the offences
referred to in this Law when the relevant elements are
present.
Article 22 - The second paragraph of Article 77 of Law
No. 5846 has been changed as follows:
When there is a possibility of a rights violation taking
place, Article 57 of the Customs Law, No. 4458 and the
relevant provisions of the Law No. 4926 on Combating
Smuggling And Trafficking shall be applied during the
importation and exportation of the copies requiring
sanctions.
Article 23- Sub-subparagraph (C) of Subparagraph 1 of
the first paragraph of the amended Article 80 of Law No.
5846 and its last paragraph have been changed as
follows:
"C. Radio and television institutions shall fulfil the
obligations imposed on them as per the present Law.
Radio and television institutions have the following
exclusive rights concerning the broadcasts they produce:
1) Permitting or prohibiting the fixing of their
broadcasts, their simultaneous transmission by other
broadcasting organizations, their delayed transmission,
their re-transmission, and their distribution via
satellite or cable;
2) Permitting or prohibiting the direct or indirect
reproduction and distribution by any technique or method
of their broadcasts except for special use;
3) PERMITTING OR PROHIBITING THE TRANSMISSION OF
THEIR BROADCASTS IN PUBLIC PLACES;
4) Permitting or prohibiting the public transmission
of their fixed broadcasts for real persons to access
their broadcasts at the time and place of their choice;
5) Permitting or prohibiting the public transmission
by another broadcasting institution or cable operator or
other third parties of their broadcast signals either on
communication satellites or signals directed at them and
the descrambling of their encoded broadcasts."


"Those who violate the rights of associated right-owners
shall be sentenced to,
a) imprisonment from three months to two years or a
heavy fine between TL 5 billion and TL 50 billion or
both considering the gravity of the damages in the case
of violations involving the sale of the copies of a
performance, phonogram, or production reproduced without
permission in the places indicated in the seventh
paragraph of Article 81 of this Law;
b) imprisonment from two years to four years or a heavy
fine between TL 50 billion and TL 150 billion or both
considering the gravity of the damages in the event of a
violation of the other rights indicated in this
article."


Article 24- Article 81 of Law No. 5846 has been amended
as follows:
Article 81 - It is obligatory to affix banderoles on
reproduced copies of musical and cinematographic works
and on non-periodical publications. It is also
obligatory to affix banderoles on reproduced copies of
other easily reproducible works upon the request of
their author or rights owner. Banderoles shall be
printed and sold by the Ministry. Banderoles may also be
sold through the agency of the professional unions at
the sale price determined by the Ministry.
In order to obtain banderoles for a work, the requestor
will be required to fill out an obligation form
declaring him/her to be the legitimate rights owner.
Applications are made together with the other documents
required by the Ministry of Culture. The Ministry is
under the obligation to issue banderoles within ten
workdays without recourse to any other action. The
Ministry may not be held responsible for these
procedures which shall be accomplished on the basis of
declaration.
Premises that produce materials used in the fixing and
reproduction of copies on which the affixation of
banderoles is obligatory or those that undertake the
production and/or the recording and reproduction of
these materials shall be required to obtain a copy of
the obligation form referred to in this Article, keep
it, and submit it when requested by the authorities
concerned.
Officials of the Ministry and local administrative
authorities can at any time inspect to see whether works
on which banderoles must be affixed possess the said
banderoles. When deemed necessary, the local
administrative authorities may form an "Inspection
Committee" in provinces either on their own initiative
or upon the Ministry's directive. When required,
representatives of the Ministry and the representatives
of the professional union in the relevant field can also
take part in these committees. In the event of
violations indicated in this article, the Security
Forces and the municipal police may either on their own
initiative and/or upon being informed by right-owners,
committees, professional unions, the Ministry, and
others authorized and tasked by other relevant laws
shall act to collect copies reproduced and distributed
without permission or in violation of procedures and all
kinds of devices used for reproducing these copies and
other evidence, put the immovable ones under
safeguarding, and forward the collected evidence to the
Public Prosecutor along with a denunciation.
The Public Prosecutor shall request within three days
the competent court to confiscate the copies or
publications that have been illegally reproduced, to
have them destroyed, to seal off technical equipment
used to this end and to close down the premises where
the sale and illegal reproduction of the above has been
undertaken.
In the event authors or right-owners fail to file a
complaint with the competent court within fifteen days
of the confiscation of the copies and non-periodical
publications, the competent court shall decide upon the
request of the Public Prosecutor to have enough number
of copies kept that would form a basis for the case and
the rest destroyed or, if their recycling is technically
possible for re-use as raw material, sold as raw
material in their present condition or after their
characteristics are degraded in such a way as to
preclude their re-use. The provisions of the amended
Article 68 of this Law shall apply in the event the
authors or right-owners do apply or file a complaint
during the stipulated time period.
The sale on roads, squares, open air markets, sidewalks,
piers(quays), bridges or similar locations of legally
reproduced copies protected within the framework of this
Law is prohibited. Security Forces and municipal police
must confiscate such copies wherever they are seen and
forward the confiscated copies to the authorities
concerned. The manner of evaluation of these
confiscated copies and publications either through sale
or by other means shall be determined by the Ministry by
taking the input of the professional unions in the
relevant field.
The procedures and principles pertaining to the
enforcement of the points prescribed in this Article
shall be set out in a Regulation to be issued by the
Ministry.
Those who, in contrary to the provisions of this
article, deliberately:
1. commit the following offences involving non-
periodical publications and carrying materials such as
cassettes, CDs, DVDs, and VCDs on which the works,
performances, and productions requiring banderoles as
per this Law are fixed shall be sentenced to:
a. imprisonment from three months to two years or a
heavy fine between TL 5 billion and TL 50 billion or
both considering the gravity of the damages for selling
the said items in the places stated in the seventh
paragraph of this Article without having obtained
banderoles;
b. imprisonment from two years to four years or a heavy
fine between TL fifty billion and TL one hundred and
fifty billion or both considering the gravity of the
damages for reproducing and disseminating the said items
without having obtained banderoles, or distributing them
without charge in infringement of the rights of the
author or associated rights owner, or distributing them
with or without charge without affixing on them as
prescribed in the relevant laws and regulations the
banderoles obtained in conformity with this Law and the
relevant legislation;
2. obtain banderoles by deceiving the Ministry or the
organizations authorized by the Ministry with forged
papers or documents or in any other manner in the
absence of an entitlement to receive banderoles in
accordance with this Law and the relevant legislation,
or use for other than their intended purpose the
banderoles issued for non-periodical publications and
carrying materials such as cassettes, CDs, DVDs, and
VCDs on which the works, performances, and productions
exclusively requiring banderoles as per this Law are
fixed shall be sentenced to imprisonment from two years
to four years or a heavy fine between TL twenty billion
and TL two hundred billion or both considering the
gravity of the damages;
3. manufacture forged banderoles, use them, and/or
obtain commercial gain from the forged banderole in any
manner shall be sentenced to imprisonment from three
years to six years or a heavy fine between TL fifty
billion and TL two hundred and fifty billion or both
considering the gravity of the damages.
For those deliberately committing any of the offences
cited above with associated sanctions, Law No. 3005 on
Flagrante Delicto Crimes Trial Procedures shall apply
irrespective of the stipulation concerning location
cited in Article 1, Subparagraph (A) of the said Law and
the stipulation concerning time in Article 4 of the same
Law and public prosecution shall be initiated without
seeking the condition stipulated in Sub-paragraph 8 of
Article 344 of the Code of Criminal Procedure, Law No.
4212.


Article 25 - The third and fourth paragraphs of
Additional Article 4 of Law No. 5846 have been amended
as follows:
"In the event of the violation of the rights to which
authors of works and owners of associated rights are
entitled under this Law by providers of service and
content through the transmission of signals, sounds,
and/or images including digital transmission, the works
which have been subject to violation will be removed
from the content upon the request of the right holders.
The person whose rights have been violated will
initially contact the content provider and request that
the violation be discontinued within three days. Should
the violation persist, a request will next be made to
the Chief Public Prosecutor asking that the service
being provided to the content provider persisting in the
violation be discontinued by the relevant service
provider. The service being provided to the content
provider will be restored if the violation is
discontinued. Service providers will submit a listing
of the names of their content providers to the Ministry
on the first workday of each month. Service providers
and content providers are under the obligation to submit
all kinds of information and documents to the Ministry
upon request. The rules and procedures governing the
implementation of the provisions in this Article will be
defined as per regulations to be issued by the Ministry
of Culture and Tourism."
"The provisions in Subparagraph (2) of Article 72 of
this Law will be applied to those who commit the acts
described in the first paragraph deliberately and
without authorization and to the content providers who
persist in violation of rights."


Article 26 - The following Articles have been added to
Law No. 5846:
Additional Article 7 - The following fees to be
collected as per the indicated Articles of this Law
shall be deposited in the account of the Central
Accounting Office of the Ministry to be used for the
enhancement of the intellectual property system, support
for the sectors operating in this field, and cultural
activities:
a) Registration fees to be received in accordance with
Article 13;
b) The fees for application to the Reconciliation
Committee to be received in accordance with Article 41;
c) Banderole fees to be received in accordance with
Article 81.
The special deposited amounts shall be entered as
revenue in the budget on the one hand and booked as
allocation for existing earmarked funds or as special
allocation for funds to be earmarked in the future in
the budget of the Ministry of Finance to be used for the
same purposes by the Ministry of Finance on the other
hand. The Ministry of Finance shall be authorized to
carry over the unused balance of the special allocations
as revenue or allocation to the next year's budget. Out
of the sum entered as special allocation, an amount to
be calculated by multiplying the index value of 2000 by
the monthly coefficient for civil servants per meeting
day shall be paid as honoraria to committee members
serving in the committees to be formed in accordance
with Article 41 - limited to not more than ten meeting
days per year.
The procedures and principles pertaining to the use of
the revenues indicated in Subparagraphs (a), (b), and
(c) that are entered as special allocation shall be
stipulated in a Regulation to be issued by the Ministry
with the concurrence of the Ministry of Finance.


Additional Article 8 - A data base author who has made a
considerable investment as regards quality and quantity
in the creation, verification and presentation of a data
base and is entitled to exercise financial rights in the
ways and conditions prescribed in this Law will also be
entitled to the right to permit or prohibit,
a) the permanent or temporary transfer to another medium
via any means and in any manner,
b) the distribution, sale, rental and being made public
in any manner,
of a portion or the whole of the data base contents with
the exceptions specified in this Law and necessitated by
purposes of public safety and administrative and
judicial procedures.
The duration of this protection granted to a data base
author shall be 15 years from the date of becoming
public property.
After every qualitative and quantitative addition,
removal, or modification producing a significant change
in the contents of the data base and requiring a new
investment, the new data base resulting from such
investment will be entitled to protection terms in its
own right.
The provisions in Article 72, Subparagraph (3) of this
Law shall apply to those who violate the rights granted
per this Article.


Additional Article 9 - For the purpose of ensuring the
enforcement and protection of intellectual property
rights and use in investigations and prosecutions, the
Ministry will create a joint data base including the
professional unions, public premises, the
radio/television organisations mentioned in this Law,
and the businesses manufacturing and/or recording,
reproducing, and selling the materials used in the
reproduction and fixing of intellectual works and works
of art, or distributing such materials in any manner.
All points relevant to the technical infrastructure and
equipment required, access, use, authorization, and
creation of the data base will be stipulated in a
Regulation to be issued by the Ministry.
Additional Article 10 - An administrative fine shall be
imposed in the following cases:
1. TL three billion on those selling on roads, squares,
open air markets, sidewalks, piers, bridges or similar
locations legally reproduced copies bearing banderoles
protected within the framework of this Law.
2. TL ten billion for small enterprises, TL thirty
billion for medium sized enterprises, and TL one hundred
billion for larger enterprises on those operating
without obtaining the certificates that need to be
obtained in accordance with Article 44, or reproducing
intellectual works and works of art requiring banderoles
without obtaining a copy of the obligation form
indicated in Article 81.
3. TL five billion on those failing, in contrary to the
provisions in Additional Article 5, to submit within the
designated time period the works that need to be
compiled and adapted.
Administrative fines foreseen in this article shall be
imposed by the local authorities by citing their
justification.
Fines must be paid within ten days as of the date the
relevant notification has been communicated. In the
event of non-payment within the first ten days, the
fines shall be doubled and the payment period shall be
extended by another ten days. Fines not paid during the
extended period shall be tripled. Payment of a fine
shall not mean relief from obligations. The fines
imposed under this Article shall be collected in
accordance with the provisions in Law No. 6183 on the
Collection of Public Debts.
Fines will be communicated to the person concerned as
per regular procedures. Objections may be raised against
fines with the competent administrative court within ten
days of the date of notification. Objections shall not
suspend procedures. The court's decisions on objections
shall be final. Objections shall be finalized promptly
by a review of the documentation where court action is
not deemed necessary.


Additional Article 11 - Scientific and literary works in
writing that have become public property or been
published may be reproduced or lent without obtaining
the permissions stipulated in this Law and without any
commercial purpose in the form of cassettes, CDs,
Braille alphabet, and similar formats by a handicapped
person for his/her own use or by a single third person
on the latter's behalf in a single copy, or by
educational institutions, foundations, associations, and
the like providing services for the benefit of the
handicapped in as many copies as would meet their
requirements if no such copies have already been
produced for the use of the handicapped. Such copies may
not be sold, made an object of trade, and used or
allowed to be used for other than their intended
purpose. Furthermore, it shall be obligatory to display
the right-owners' information and indicate the purpose
of reproduction on the copies.


Article 27 - The following Provisional Articles have
been added to Law No. 5846:
Provisional Article 6 - The procedure prescribed in
amended Articles 41 and 43 of this Law regarding the
determination of tariffs and the conclusion of contracts
shall be applied as of the date this Law is published
with the current year taken as the basis irrespective of
durations stipulated in these articles.
The broadcasting contracts signed between professional
unions on the one hand and public premises and
broadcasting organizations on the other hand before the
date of publication of this Law shall remain valid with
all of their provisions until the end of the periods
indicated in the contracts.
The classification mentioned in Articles 41 and 43 of
this Law shall be made within no later than one month
from the date of entry into effect of this Law. Public
premises and/or broadcasting organizations that apply to
professional unions to obtain permission and conclude a
contract within six months from the initial announcement
of the tariffs by the professional unions based on, and
made within no later than one month as of the date of,
such classification may continue to use and/or transmit
works, performances, phonograms, productions, and
broadcasts for a maximum period of six months by paying
one-quarter of the professional union tariff for periods
of three months at a time. The provisions in this
Article shall not impede the application of the
procedure prescribed in Articles 41 and 43 of this Law.
Provisional Article 7 - All vehicles, equipment and
materials of inspection committees formed in provinces
before the date of publication of this Law whose
operations are no longer needed within the framework of
Article 81 shall be transferred to the provincial
Directorates of Culture and Tourism.


Provisional Article 8 - The regulations called for in
the articles amended as per this Law shall be prepared
and made to go into effect within six months as of the
date of publication of this Law. The database envisaged
per Additional Article 9 of this Law is formed within
one year as of the date of publication of this Law.


Article 28- The following have been rescinded on the
date of publication of this Law:
1. Law No. 3257 on Cinematographic, Video And Musical
Works dated 23.1.1986:
a) The phrases "and banderoles" and "or without
banderoles" in the first paragraph of Article 9;
b) The letter "(a)" appearing in Subparagraphs (a) and
(e) of the first paragraph of Article 10 and in the
second paragraph;
c) The phrase "those who display works without a work
operating licence or without banderoles or in a manner
not true to their original form despite the presence of
an operating licence and banderoles as stated in the
first paragraph" appearing in Subparagraphs (c) and (d)
of Article 11;
2. Law No. 5846 on Intellectual Property and Works of
Art dated 5.12.1951:
a - The term "real" following the phrase "four times the
primary member number" Subparagraph (b) of Article 1/B;
b - The second and third paragraphs of Article 20;
c - The fourth, fifth, sixth, and seventh paragraphs of
Additional Article 5.


Article 29 - Article 15 of this Law and the phrase
"operating without obtaining the certificates that need
to be obtained in accordance with Article 44, or"
appearing in Subparagraph (2) of Additional Article 10
added to this Law as per Article 26 of this Law shall go
into effect six months after the date of publication of
this Law and the remaining Articles shall go in effect
on the date of publication.


Article 30 - The provisions of this Law will be enforced
by the Council of Ministers.
End AMPEC Translation.
Edelman

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