The IP experience according to Asia’s Women of IP31 March 2020
Women of IP, in honour of International Women's Da...
29 February 2020
According to the experts, existing laws in the majority of countries are sufficient to protect copyright stakeholders.
For example, existing laws in Indonesia are sufficient, says Justisiari Kusumah, managing partner at K&K Advocates in Jakarta. “In order to protect the moral and economic rights of the creators and/or copyright holders, the existing copyright law stipulates criminal sanctions of imprisonment and fines which are relatively higher compared to the previous copyright law (Law No. 19 of 2002 on Copyright). Accordingly, whoever has the copyright must actively protect their materials by enforcement.”
In Turkey, the current basic legislation for copyright registration, Law No. 5846, was enacted on January 1, 1952, and there have been several amendments since in order to keep the law current.
The basic principle of the law is to protect authors and creators; it embraces provisions to protect their rights firmly. Hence it should be concluded that the law is satisfactory in the context of the protection of author’s right, says Havva Yıldız, an associate at Gün + Partners in Istanbul.
“Indeed, according to the law, copyright holders can seek for several remedies both in civil and criminal proceedings in case of the infringement of their material and/or moral rights on the copyrighted work. Preliminary injunctions, prevention of manufacturing, sale, and importation of the infringing products in civil proceedings, removal and destruction of infringing materials, claim for material and moral damages, and publication of the court’s verdict are such remedies in civil proceedings. Especially the possibility of the copyright holder to claim the payment of compensation up to three times of the amount that could have been demanded if the right had been granted by contract, or up to three times of the current value which shall be determined under the provisions of the law in case of infringement of its economic rights as to the Article 63, is a significant protection that Turkish Copyright Law offers, among many other copyright systems,” says Yıldız.
Moreover, Article 71 of the law rules the criminal liability for the infringement of copyright. “Exploiting the economic rights of a copyrighted work without the permission of the owner, making an adaptation without any reference to the original work and renaming a work without referring the actual owner, using another person’s name who is known by the public on the work, performance, phonogram, etc., and disclosing a work to the public without the permission of the owner are some of the acts which should be penalized,” Yıldız says. “Sanctions are generally imprisonments (up to five years depending on the criminal act and the form of occurrence) and judicial fines.”
On the other hand, the Turkish law could be seen as insufficient since it does not succeed in complying with the technological developments adequately. “The European Union regulations are evolving by the need of modern copyright rules which will fit the digital age. The latest directives of the EU, ‘The Directive on Copyright in the Digital Single Market’ and ‘The Directive on Television and Radio Programmes’, are crucial initiatives to enable the legislation to address the needs of both content owners and the public in a digitalized world,” she says. “There is no doubt that the Turkish copyright law should keep a close eye on these developments and integrate the required ones with its own system if required by tailoring them according to domestic needs, legal and social infrastructures.”
Nowadays, whether and how to fairly protect artificial intelligence-generated content (and even the AI itself) under copyright law is a highly-debated issue which remains unclear in the Turkish copyright system, as it does in other systems around the world, she adds. “As it has been known, a draft bill is being prepared to amend the Artistic Works Law by the Turkish Ministry of Culture and Tourism. Hopefully this will cover the provisions to comply with the needs of the digital world, together with AI and AI-generated content.”
Many lawyers do find that harmonization of law is a better way to deal with globalized copyright theft, but the difficulty of achieving that remains high.
Harmonization of copyright law is indeed a better way to deal with globalized copyright theft, says Tanakrit Tangburanakij, a partner in Baker McKenzie’s IP practice group in Bangkok. “Copyright laws traditionally are passed by each country. However, online copyright theft extends beyond borders as users, creators, intermediaries, and the content itself can be located anywhere in the world.”
There are already existing treaties which attempt to harmonize copyright law. For example, the Berne Convention, which is administered by the World Intellectual Property Organization, allows member states to harmonize their own copyright laws based on basic principles and minimum standards of protection set by the Convention. The Trade-Related Aspects of Intellectual Property Rights – TRIPS – also sets out minimum standards of IP protection, which includes copyright protection, says Tangburanakij.
However, there are practical issues with these attempts at harmonizing copyright law, he says. “The latest amendments to the Berne Convention were in 1979, which was before the digital technology and the internet era, as well as the copyright complexities that came with it. In addition, these treaties only set minimum standards of protection rather than providing ideal standards.”
Copyright infringement in some countries is a criminal and civil offense, while others only recognize infringement as a civil offense. “Without the threat of criminal penalties as a strong deterrent, infringers may be willing to accept the risk of civil penalties as costs for doing business and continue their illegal activity,” he says. “Civil penalties also vary among countries, with some countries enforcing statutory damages to deter infringers. However, other countries that don’t recognize statutory damages require each plaintiff to prove actual damages. This is not only difficult to do, but the proceedings are also time consuming and costly.”
Since copyright theft is increasing over online platforms which are borderless, deterrence against infringers such as statutory damage provisions and criminal penalties should be harmonized among all countries to address globalized copyright theft in the digital age, he says. “Though these challenges are difficult, harmonization of the amendments to the copyright laws would bring greater benefits to copyright owners and end users in long term.”
If all desired laws were in place, could enforcement authorities keep up with them? Even our experts find that particular question tough to answer.
“It is difficult to say during this digital disruption, as such we believe that the relevant enforcement stakeholders should also equip themselves with a thorough understanding of how infringement is taking place in this new environment,” Kusumah says. “Close working relationships, including sharing best practices, as well as capacity-building remain important to be carried out amongst the relevant enforcement officers, content creators and copyright holders.”
Turkey established specialized IP courts in Istanbul, Ankara and Izmir provinces in 2005. “The copyright is enforced before these courts if the dispute falls within their jurisdiction,” says Hande Hançar, a partner at Gün + Partners in Istanbul. “Having IP courts which are expected to be specialized generally in IP and specifically in copyright is clearly a positive factor for the Turkish enforcement system.”
However, there has recently been a substantial decrease in the number of – and efficacy of – IP courts. “In addition to closing some of them, unfortunately, judges who are currently being appointed to the remaining courts do not really specialize in IP, which is problematic in terms of effective enforcement. Also, IP proceedings in Turkey rely heavily on expert witnesses. Although these experts are not always as qualified within their fields, their opinions are given great effect and discretion,” she says. “Restructure of the courts, frequent change of the judges and the inappropriate expert reports cause excessively long judicial proceedings.”
Moreover, the “mandatory mediation” for commercial disputes which entered into force in January 2019 in Turkey, applies to copyright law for cases where the copyright owner seeks compensation due to infringement, she adds. “According to this recent practice, such cases cannot be brought before the competent IP court unless the mandatory mediation process has been completed and a final report has been issued by the mediator. This practice may either extend the time of the judicial proceedings if it fails to amicably solve the issue despite the completion of the mediation process or oppositely may work as a practical tool to facilitate the parties to find a middle ground by avoiding the court proceedings.”
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