NOTICE-TAKE DOWN SYSTEM IN COPYRIGHT INFRINGEMENTS IN TURKEY

Intellectual property rights refer to unique and individual creations of the mind worthy of legal protection and are essentially divided into two main areas: copyrights and industrial property rights. While Law on Intellectual and Artistic Works no.5846 (the “LIAW”) is the primary legislation on copyright issues, industrial property rights are protected under the Law no.6769 “Industrial Property Law”. LIAW protects the artworks protected under “intellectual property rights” and regulates the right holders’ economic and moral rights on such works. Within the scope of the LIAW, “work” is defined as “any intellectual or artistic product bearing the characteristics of its owner/creator, which is deemed a scientific and literary or musical work or work of fine arts or cinematographic work.”. Taking such definition into account, in order for an intellectual creation to be deemed as “artwork”, it is required to bear the characteristic of its owner and also to fall within one of the categories of works. With this study hereby, the practice of Additional Article 4 of the LIAW regarding online copyright infringements will be construed. Development of the Internet and Intellectual Property Rights Intellectual property rights, taking a more important role with the invention of the printing press, became even more dependent on legal protection with the emergence of the Internet and the rapid progress of communication technology. The Internet has been briefly defined as "a global information access and communication network.”[1] In 2021, it was considered that 5,168,780,607 people worldwide, i.e., 65.6% of the world population, are internet users. [2] With the gradual rapid development of the internet, it is undeniable fact that information has become more accessible, and the universal spread of information has accelerated at a great pace. Yet, this rapid spread and use have also brought many conflicts along with it. In this context, intellectual property rights frequently become the subject of internet use and are exposed to various violations. As a matter of fact, since intellectual property rights available in online platforms are violated through duplicating, broadcasting and circulating[3] them without having the proper consent of the right holders, the majority of criminal complaints are based on violation of rights through the internet. [4] Violations of copyright and related rights are regulated within the scope of cybercrimes under the Convention on Cybercrime dated November 23, 2001, serving as the first international convention regulating computer and internet crimes, to which Turkey is also a party. The Explanatory Report to the Convention states “…copyright infringement is one of the most common forms of computer-related crimes and increases in the rates raises international concern.”.[5] Intellectual property rights are exclusive and absolute legal rights in the Turkish legal system, which grants erga omnes entitlement (i.e., enforceable towards all infringing that right) and are divided into economic rights considered among assets values, and moral rights, which are personal rights. Article 27 of the Universal Declaration of Human Rights states that “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”. Today, comprehensive legal protection of intellectual and artistic works is essential in terms of encouraging the production of new ideas and works of art, as they are one of the most significant features and requirements of developing societies and providing confidence to the right holders while ensuring the protection of the monetary gains of the right holders. “Cease and Desist” under the Law No.5846 Law On Regulation of Publications on The Internet and Combating Crimes Committed by Means of Such Publication (“The Internet Law”) No. 5651 defines access blocking as denying users’ access to a website through various techniques (blocking access from the domain, blocking access from the IP address, blocking access to the content (URL), and blocking access by using similar methods …etc.)[6]. Within this framework, legal regulations regarding access blocking practice in Turkey are regulated under various laws and legislations, one of which is Additional Article 4, within the scope of the LIAW No. 5846. Additional Article 4 states that “In case where rights of authors and related rights holders granted by this Law have been violated by providers of service and content through the transmission of signs, sounds, and/or images including digital transmission, the works which are subject of the violation shall, upon the application of the right holders, be removed from the content. Natural or legal persons whose rights have been violated shall, to this end, initially contact with the information content provider and request that the violation be ceased within three days. Should the violation continue, a request shall next be made to the public prosecutor requiring that the service being provided to the information content provider persisting in the violation be suspended within three days by the relevant service provider. The service being provided to the content provider shall be restored if the violation is ceased. Service providers shall submit a list of the names of their information content providers to the Ministry on the first working day of every month. Service providers and content providers are obliged to submit all kinds of information and documents when requested by the Ministry. The rules and procedures regarding the application of the provisions of this Article shall be stipulated in a by­law to be issued by the Ministry.”. However, as will be discussed in detail below, there are divergent views regarding the such provision. Before getting into the debates, it is essential to refer to some relevant terms. Within the scope of Law No. 5651, the following terms shall refer to: Content provider:Real persons or legal entities that create, modify, or information or data to provide users with online delivery. Hosting provider: Real or legal entities who provide or operate systems that host, operate, or provide services and content, Access provider: Real persons or legal entities who provide access to the Internet for users, First, there are several ongoing discussions on the term “information content provider” as stated in the LIAW Additional Article 4, whether that is identical with the one declared as the “content provider” under the Law No.5651. Although we think that both expressions bear the equivalent meaning since the “content provider” term is used in both texts, the reason why the legislator would not rather use a uniform term is a mystery. There are controversial opinions on whether the “content provider” term in Additional Article 4 should be interpreted as “hosting provider” or “access provider” as defined in Law No.5651. Pursuant to one of the legal opinions, since the term "internet servis sağlayıcı" is included in the law by referring to the English term "internet service provider," the term "content provider" should be interpreted as "access provider.". Yet, the counter-opinion argues that since the service provided to the content provider is a hosting service, the term "service provider" inhere refers to "hosting provider.” We are on the same page with the latter interpretation, since in the event of acceptance of the contrary opinion, the decision to stop providing service in favor of the infringing content provider would have been misconstrued as the cancellation of subscription services between the content provider and the access provider -which would not serve and comply with the purpose of the provision[7]. The goal here is not to terminate any subscription service but to stop the services provided for specific content to be hosted on a website. According to the respective provision, the natural persons, or the legal entities whose rights have been infringed shall primarily approach the information content provider to stop the infringing acts within three days. A similar approach to this system -which is defined as “notice and takedown procedure” in the Doctrine- is seen in Digital Millennium Copyright Act (“DMCA”) dated 1998. As per such regulation, hosting providers remove the infringing content upon the notice of right holders[8]. However, DMCA sets forth a different practice that entails only copyright infringements, and the “notice” can only be sent by the copyright owner or their agent/legal representative[9]. Thus, service providers may be exempt from liability if they do not have any benefit from the relevant infringement, if they have not previously been informed that the content constitutes IP infringement, and if they immediately removed or blocked the infringing content subsequent to the notification of the right holders[10]. Another issue regarding Additional Article 4 is that the right holder needs to notify the content provider in case of an infringement or violation in the first place. However, there is no regulation on how or under which conditions the content provider should be reached or the consequences of impossibility to reach the content provider. Differently from our legislations, within the scope of DMCA, the service providers’ websites must clearly state the contact details to which the infringement will be reported, and this information must also be registered with the U.S. Patent Office. [11] Therefore, by providing an accessible addressee for the right holders to reach and notify violations, an effective operation of the notice take-down system has been established. From our standpoint, if contact information can be accessed, a legal notice to be sent through Notary Public to the content provider will be convenient regarding the burden of proof within the scope of Turkish law. However, there is also the opinion that it is possible to notify through any form of written notification since no form requirement has been specified within the scope of the law. [12] 11th Civil Chamber of the Supreme Court dismissed the case on the ground that it cannot be expected for the defendant to be aware of the infringed content to remove since the plaintiff's employee associations have not duly issued a notice of violation as per Additional Article 4. [13] Having no indication in the letter of the provision of law concerning the procedure to be followed if the content provider cannot be reached poses some problems in practice. At this juncture, it is relevant to mention about the Draft Bill to Amend Law No.5846 dated 5th May 2017. As per the redrawn Additional Article 4, it is stated that “In case where rights of authors and related rights holders granted by this Law have been violated through the internet, right holders may notify the content or hosting provider, and request the violation to be ceased including with all the necessary documents indicating the ownership and infringing content via e-mail or other communication tools on their web pages or may directly resort to the public prosecutor to block access.”. According to the amended draft provision, the obligation to apply to the notice and take-down procedure before filing a claim to the Public Prosecutor has been abolished, and the right holders have been given the option to notify the content or hosting provider only with the requirement for the notice to be sent "to the e-mail or other communication tools on the internet pages". Having said that, the Draft Bill has not yet entered into force. Lastly, the Public Prosecutor is given the authority to issue cease order within the scope of Additional Article 4. This issue arouses suspicion on the legal nature of the relevant sanction since blocking access to content would denote a limitation of the freedom of thought and expression, which is within the scope of constitutional rights. We believe that authorizing the Public Prosecutor to deliver a judgment without being subject to a judge or court review constitutes a violation of the constitutional order. As a matter of fact, regarding the decisions to block access within the scope of Law No. 5651, the competent authority is regulated as the judge of the criminal court of peace at the stage of the investigation and as the competent court at the prosecution phase or, as the public prosecutor in non-delayable cases under the condition that the decision of blocking access and/or removing content must be approved by the judge of the criminal court of peace within twenty-four hours. The non-requirement of a judge's decision or approval to cease the services under the LIAW is criticized in terms of the extensive examination and expert determination of copyright violations required by their nature. [14][15] The Constitutional Court on Twitter Decision (Akdeniz and Others v. Turkey - 41139/15 and 41146/15) has ruled that the internet is an essential subject in terms of delivering news and ideas to all segments of the society and that it also establishes substantial freedom of expression platform, therefore, blocking access to internet sites or access to the news on these sites, would interfere with the right to freedom of expression and information which are among the fundamental constitutional rights. [16] In this context, it is self-evident that any access blocking will be considered as a restriction of constitutional rights. We are of the mind that entailing a judge's decision will be legitimate in the practice of ceasing services which is a measure that will cause restriction of freedom of expression and information based on principles of the state of law and constitution. Because without holding a fair trial, some mistakes might occur in a possible cease decision given by the public prosecutor. [17] However, it can be inferred that blocking access is an administrative measure, from the various laws and regulations that vest authority to administrative institutions to block access (ex: Head of Information Technologies and Communications Authority, Union of Access Providers, Directorate General of National Lottery Administration, Directorate of Religious Affairs, etc.) without the requirement of judicial approval, as per Turkish law. [18] CONCLUSION Protection of intellectual property rights are of great importance considering how the violations of intellectual rights are escalating each passing day with the rapid development and spread of the Internet. Violation of copyrights on the internet is regulated within the scope of Additional Article 4 of Law No. 5846, and in accordance with the relevant provision, right holders whose rights have been infringed apply to the content provider and request the violation to be ceased within 3 days. This method is a projection of the "notice-take down" system implemented under the US Digital Millennium Copyright Act (DMCA) dated 1998. Should the violation continue, a request shall be made to the Public Prosecutor requiring the infringing service being provided to the content provider to be ceased. We are of the view that “service provider” term should be interpreted as “hosting provider” as defined as “Real or legal entities who provide or operate systems that host services and content” under Law No.5651. As evident from the context of the relevant provision, it is obligatory to notify the content provider before resorting to the Public Prosecutor. Yet, there is a legal gap in the procedure to be followed if no valid contact information of the content provider can be reached. Finally, that the practice of ceasing of service, which has the same legal nature as blocking access regulated pursuant to Additional Article 4 in Law No. 5651, can be implemented without a comprehensive review by the courts, is restricting the constitutional rights to information and freedom of expression which are also subject to the Universal Declaration of Human Rights. Therefore, the practice is exposed to criticism of being contrary to the democratic legal order and we are of the opinion that the relevant article should be revised and amended in a way to eliminate the confusion in terms of both the letter of the law and its implementation. Uğurcan Tekin, LL.M Partner at DLC Law Firm Attorney At Law, Trademark Attorney [1] Mehmet Bedii Kaya, İnternet Hukuku, On İki Levha Yayıncılık, İstanbul, 2021, s. 1. [2]Internet World Stats, Internet Usage Statistics, 2021, Erişim Adresi: https://www.internetworldstats.com/stats.htm, Erişim Tarihi 18.01.2022. [3] H. Lâle Ayhan, “AB ve Türk Hukuklarına Göre İnternet Ortamında Fikrî Mülkiyet Haklarının İhlâli” (Yüksek Lisans Tezi, Gazi Üniversitesi, 2010, s.2). [4]Cahit Aliusta-Recep Benzer, “Avrupa Siber Suçlar Sözleşmesi ve Türkiye’nin Dahil Olma Süreci”, Uluslararası Bilgi Güvenliği Mühendisliği Dergisi, Cilt:4, No:2, 2018, s:36, Erişim Adresi: https://dergipark.org.tr/tr/download/article-file/645923, Erişim Tarihi: 18.01.2022 [5]Avrupa Komisyonu, “Explanatory Report to the Convention on Cybercrime”, Erişim Adresi: https://rm.coe.int/16800cce5b, Erişim Tarihi 18.01.2022. [6] Doğan Kılınç, “Türk Hukukunda ve Mukayeseli Hukukta İnternet Sitelerine Erişimin Engellenmesi ve İfade Hürriyeti”, Gazi Üniversitesi Hukuk Fakültesi Dergisi, Sa. 2, 2010, s.408, Erişim Adresi: https://dergipark.org.tr/tr/download/article-file/789488, Erişim Tarihi: 18.01.2022 [7] Yusuf Başlar, “Fikir ve Sanat Eserleri Kanunu’nun Ek Madde 4 Hükmünün İhlali Suçları”, Ankara Barosu Dergisi, 2019/4, s 69, Erişim Adresi: https://dergipark.org.tr/en/download/article-file/996607, Erişim Tarihi: 18.01.2022. [8] Başlar, a.g.e., s 47. [9]“The DMCA Notice and Takedown Process”, Erişim Adresi: https://copyrightalliance.org/education/copyright-law-explained/the-digital-millennium-copyright-act-dmca/dmca-notice-takedown-process/, Erişim Tarihi: 16.01.2022. [10] Doğan Kocabey, “İnternette Fikrî Hakların Korunması”, (Yüksek Lisans Tezi, Ankara Üniversitesi, 2004, s. 82). [11] Kocabey, a.g.e., S. 82. [12] Başlar, a.g.e., s 60. [13] Yargıtay 11. HD, T. 17.12.2019, .E. 2019/1433K. 2019/8234, [14] Murat Can Pehlivanoğlu, “Kişilik Haklarının İnternet Ortamında Telif Haklarına Dair 295 Tedbir Kararı Vasıtasıyla Korunması”, Yeditepe Üniversitesi Hukuk Fakültesi Dergisi, Vol. XVII, No.1, 2020, s.295, Erişim Adresi:https://www.researchgate.net/publication/344337200_Kisilik_Haklarinin_Internet_Ortaminda_Telif_Haklarina_Dair_Tedbir_Karari_Vasitasiyla_Korunmasi, Erişim Tarihi: 18.01.2022 [15] Emrah Çelik, “Fikir ve Sanat Eserleri Kanunu Kapsamında İnternet Ortamında Müzik Eserlerinin Sunumu Yolu ile Umuma İletim Hakkının İhlali” (Yüksek Lisans Tezi, İstanbul Üniversitesi, 2007, s. 157). [16] AYM, Kerem Altıparmak ve Yaman Akdeniz (2), B. No: 2015/15977, 12/6/2019. [17] Çelik, a.g.e., s. 158. [18]Yaman Akdeniz- Ozan Güven, “Engelli Web”, Erişim Adresi: https://ifade.org.tr/reports/EngelliWeb_2019.pdf, Erişim Tarihi: 16.01.2022