Intellectual Property, Information Technology & Cybersecurity

By: Yesim Tokgoz 

We live in an age where even babies are able to use the internet. We have mobile phones and the internet with us at all times – even in the morning when we wake up, during our coffee breaks, and throughout our most important evenings. According to 2015 data[1], internet users in Turkey spend 4 hours 37 minutes on the internet, and spend 2 hours 51 minutes using mobile internet. These periods are specifically noted as 4.5 and 2.7 hours throughout the world. Internet users spend these times by logging onto social media or browsing through random websites.

It is inevitable that such easy access, and bringing the World to our fingertips cause rights violations, either deliberately and/or unconsciously. In this regard, it is not incorrect to say that intellectual property rights suffer the most damage. In this article, we will address certain enforcements in order to prevent the infringement of intellectual property rights via the internet, regulated in the Law regarding the Protection of Intellectual Property Rights ("LIPR"), in Regulation of the Publications on Internet numbered 5651 and the Law regarding Content with the Crimes Committed Through These Publications (“Law numbered 5651”or “Law”), and jurisprudence of the Supreme Court.

Related Terms

We believe that it is useful to explain some of the terms before making statements on the subject. Within this scope, we want to shed light on the meaning of terms, such as access provider, content provider, hosting provider, and providers of public use, which are used widely in this article. Access provider (also referred to as service provider) represents all natural or legal persons who allow users to access the internet; content provider represents all natural or legal persons who generate, change and provide all kinds of information and data to users via the internet; hosting provider (web hosting provider) represents all natural and legal persons who provide or operate the systems that host the content; providers of public use represent providers of internet use in a certain place and at a certain time. For instance, the company that provides the line which we use for internet and to whom we pay for this service, is the access provider; the company that advertises its products on a web site is the content provider; forums and social media sites that are accessible to everyone, or to just its members, are host providers; and internet cafes are the providers for public use. The Notice and Takedown Procedure represents a notice to a content provider (and notice to a hosting provider in the case of not realizing a result within a reasonable time from the content provider) requesting to ban the content of publications on the Internet, by the right holders who claim violation of their rights due to content.

LIPR

We shared information in our previous article[2] regarding these works and their protection under the LIPR. In this article, we dwell on the means that are applied at the first stage, in the event of a violation of the referred right holders’ rights via the internet, besides the material and moral indemnity requests. In this context, if it is determined that there has been a violation in the scope of the LIPR via the internet, the content that is subject to violation can be removed from internet in accordance with Additional Art. 4 of LIPR. Thus, the right holder prevents internet users from being misled, or unfair advantage being taken by the infringer, by immediately removing unauthorized / unfair content from the internet.

In this regard, the right holder should primarily request the content provider to cease the violation within three days through written notice. This procedure is called the above-mentioned Notice and Takedown Procedure, in application. Even if the content provider, who receives such a warning is not at fault, the content that is subject to violation should be removed from the internet. In the event of continued violation despite the warning, the right holder may apply to the Public Prosecutor's Office to force the access provider to cease service to the content provider who had received the Notice and Takedown[3].

Law Numbered 5651

The purpose of the Law is to regulate the obligations and responsibilities of content providers, hosting providers, access providers, and the providers of public use; and the procedures and principles regarding the content with respect to the crimes committed through the internet by means of content, hosting and access providers. The Law makes it possible to remove the content that abuses personal rights, or confidentiality and privacy. If the conditions are present, blocking access to the related website can be required[4].

In order to implement the regulated sanctions, the right holder shall apply the Notice and TakedownProcedure with respect to the content provider. In the event of continued violation despite the notice, the removal of the content, or blocking access to the website, shall be requested from the Criminal Court of Peace. Although in the Law, the application to the Criminal Court of Peace is inferred as being optional from the notice, the Supreme Court has ruled that the application of Notice and Takedown, primarily, was the validity condition to remove the infringing content from internet and, likewise, the entire world[5].

Pursuant to the Notice and Takedown Procedure, in the event that the content provider cannot be reached, the notice shall be sent to the hosting provider. In accordance with Article 3 of the Law, the introductory information regarding the aforementioned persons shall be kept updated and accessible for their website users. Otherwise, providers are faced with administrative penalties.

If the application is made to the Court of Peace due to the violation of rights not being remedied despite the warning; in accordance with the demands, the Judge may decide to remove the content, or may order that access to the website to be blocked. Within this scope, the Judge’s decision to block access is sent directly to the Access Providers Association[6] ("Association"). The related access providers will then block access due to illegal content being published by the content provider when they are informed in accordance with the provisions of the Law, and will take preventive measures to block the alternative access means to the publications that are to be blocked. Thus, the right holders, whose rights are violated, would eliminate the violation within a short period of time.

Jurisprudence of the Supreme Court

In accordance with the jurisprudence of the Supreme Court, the provisions of the Law can be applied to trademark infringements, as well. In this regard, if there is no result after applying the Notice and Takedown Procedure, application can be made to the Court of Peace. Thus, the loss of the right holder due to the content of the internet broadcast will be prevented as soon as possible. In order to determine and eliminate such violations, trademark holders receive support from companies that specialize in intellectual property rights.These firms take necessary action by conducting global research.

If the right holders suffer loss until the content is removed from internet, they may take legal action to compensate their damages. Within this context, it is certain that content providers can be sued for trademark right infringement, because content providers are responsible for any content offered on the internet pursuant to the Art. 4 of the Law. In addition, the Supreme Court General Assembly has ruled that hosting providers may sued if they do not remove the illegal content from the internet despite having been informed concerning its illegality through a Notice and Takedown, in accordance with its resolution file numbered 2013/ 11-1138, decision numbered 2014/16[7]. The Supreme Court decided that although hosting providers are not responsible to evaluate the legality of the hosted content pursuant to the Art. 5 of the Law, in the event that the hosting provider does not remove illegal content after having received the Notice and Takedown, at that point it is liable since it would then be willfully allowing an illegal act to continue. The justifications of this decision are Art. 61 of Turkish Code of Obligations numbered 6098 (Art. 50 of the Code Of Obligations numbered 818), which states that persons who participate, or assist, or encourage, or facilitate such a violation are conjointly responsible for damages to the sufferer, together with the violator, and Art. 61(e) of the Decree Law Regarding the Trademark Protection numbered 556, entitled ‘The Acts accepted as Trademark Infringement’ which states that to participate, assist, encourage and facilitate, no matter in what form or condition, are accepted as trademark infringements, as well.

Conclusion

Such easy accessibility and globality of the internet facilitate the exploitation of intellectual property rights and unjust benefit. Therefore, it is crucial that means through which to deal with these matters, and the results to be reached, should be also easy and practical. LIPR, Law numbered 5651, and the jurisprudence mentioned, above, serve this purpose, and give opportunity to prevent and remedy infringements and unjustified benefits of right holders who diligently pursue their rights.