TÜRKIYE Law and Practice Contributed by: Meltem Manav and Yeşim Kumova, KM Legal
3.7 Copyright Enforcement and Remedies Copyright infringement arises where economic, moral or neighbouring rights are used without authorisation, or beyond the scope of a licence or in breach of its terms. It includes any unauthorised adaptation, repro- duction, distribution, performance or communication to the public, including digital transmission, as well as the commercial circulation or possession, beyond personal use, of infringing material. Further acts include passing off, failure to attribute, unauthorised disclosure of unpublished works, false attribution, and circumvention of technological protection meas- ures. Breach of bandrol requirements also constitutes infringement. Under FSEK, both civil and criminal rem- edies are available. Civil relief includes injunctions, pecuniary and non- pecuniary damages, disgorgement of profits and, under Article 68, enhanced compensation of up to three times the licence fee. While the system does not recognise statutory damages in the strict common law sense, liability in damages requires fault. How- ever, the right holder may alternatively claim the profits obtained by the infringer. Interim measures such as seizure, evidence preservation and blocking orders are available. Criminal liability arises for infringement of protected rights, circumvention of protection meas- ures and bandrol violations. Blocking orders, such as content removal and suspension of services, are also available. 3.8 Infringement Tests and Substantiality Infringement is not limited to verbatim copying. The unauthorised use of a substantial part of a work may also infringe. Courts apply a qualitative test, examin- ing whether the copied elements reflect the author’s originality and amount to substantial similarity in pro- tected expression. Even a small extract may suffice if it captures the work’s distinctive character, whereas similarities confined to generic or functional elements, or mere inspiration, do not. Assessment is case- specific, typically based on expert evidence and the nature of the work. In software, non-literal copying, such as the reproduction of structure, sequence or organisation, including through reverse engineering or “clone coding”, may constitute infringement where it extends beyond ideas into protected expression. Depending on the circumstances, cumulative protec-
tion may also arise under unfair competition and gen- eral obligations law. 3.9 Collective Management and Licensing Collecting societies are established on a sectoral basis under Article 42, FSEK for authors and related rights holders, including literary and scientific works, music, films, fine arts, performers, phonogram pro- ducers and broadcasters, to manage and enforce economic rights. Where authorised, they license uses, particularly in public venues and across broadcast and online media, and collect royalties and distribute them to members. The system is non-monopolistic, with multiple societies possible within the same field. Tariffs must comply with statutory criteria and may be subject to oversight by the Ministry of Culture and Tourism. Disputes over tariffs or royalties may be resolved through non-mandatory mediation or arbitra- tion, without prejudice to court proceedings. Societies have standing to bring civil and criminal actions on behalf of members. Educational use is subject to a limited statutory exception rather than a compulsory licensing regime, and societies may monitor its proper application. 4. Industrial Designs and Trade Dress 4.1 Legal Framework and Protectable Subject Matter Design rights are also protected under the IPL and the relevant implementing regulation. A design refers to the appearance of a product. A design encompasses all arrangements relating to a product and all aspects of its appearance. A “product” means any industri- ally or manually produced item, excluding computer programs, and includes, inter alia, a complex product and its components, packaging, presentations of mul- tiple items perceived together, graphic symbols and typographic typefaces. 4.2 Requirements for Protection A design is protected under the IPL provided that it is new and has individual character. In this respect, the examination of a design application focuses on whether the design is identical to an existing design and whether it differs from prior designs. For a design to be considered new, it must not have been disclosed
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