Intellectual Property Law

INTELLECTUAL PROPERTY LAW The term IP refers broadly to the creations of the human mind. IPR protect the interests of creators by giving them property rights over their creations.  Copyright  Industrial property COPYRIGHT  Copyright relates to artistic creations, such as poems, novels, music, paintings, and cinematographic works. Copyright is known as author’s rights.  Copyright refers to the main act which, in respect of literary and artistic creations, may be made only by the author or with his authorization. That act is the making of copies of the literary or artistic work, such as a book, a painting, a sculpture, a photograph, or a motion picture.  Copyright arises automatically upon the creation of the work, registration is not needed.  Copyrights are considered to have been created when they are made.  Unlike industrial property rights, copyrights do not need to be proven by means of a registration under the Turkish Law. INDUSTRIAL PROPERTY  Industrial property takes a range of forms, include patents to protect inventions, industrial designs, which are aesthetic creations determining the appearance of industrial products.  Industrial property also covers trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, as well as geographical indications. Those rights need to be registered by the competent authorities (like Turkish Patent Institute in Turkey) CHARACTER/DIFFERENCES  Industrial property legislation is part of the wider body of law known as intellectual property.  This branch of law has unique (sui generis) aspects different from other fields of the law.  Knowledge of classic law branches may not be sufficient to solve the disputes relating to the IPR. • Unlike material properties, intellectual properties do not exist in the form of a physical object, because they are abstract. IP are in the form of a drawing, figure, composition of colours, sounds, tunes, poem, story, original design or invention.  IPR, unlike the material property are also characterized by certain limitations, Such as limited duration in the case of designs and patent, marks After the legal period in question expires, they are considered public property Material rights, however, are not limited with a certain period of time. • IP can be protected under a multitude of laws if meets the necessary conditions (The principle of cumulative protection) For example, the appearance of a vase is protected under the design law. If the same appearance is aesthetical at the same time, it will also be eligible for protection under the copyright law. A computer has a technology, which is subject to patent and the shape of the computer nay be subject to industrial design. This computer which has a trade mark can be sold by a

business enterprise which has a commercial name. Its memory is protected by the context of copyright.  An IP is not a material property, and exists in a nature different from that of the physical object in which it is embodied. For example, a printed copy of a book is a material property, and protected under the material property law, whereas the work existing in that book is the author’s IPR. Person who has bought a book owns only that printed copy and is not considered to be gained the copyright existed in that book. He can use the book and resell it to someone else, but he has no right to duplicate it for commercial purpose. This rule is applicable to products with registered trademarks and patents too. PROTECTION/REGULATIONS  IP is protected for two main reasons: - One is to give statutory expression to the moral and economic rights of creators in their creations and to the rights of the public in accessing those creations. - The second is to promote creativity and to encourage fair trade, which would contribute to economic and social development.  Recently - Industrial society turning into information society, - Manufacturing is based on knowledge rather than raw materials and physical performance. - Considering information an important asset, the well developed countries achieved progress in using and protection of IPR  IPR must be protected to support the development of new and original products, to attract foreign investors with international relations. For example, foreign investors will not be interested in a country unless it provides through protection of IPR, because said protection is a major factor in their decision making.  IPR are protected under the basis of jurisdiction. Those rights are protected or not protected according to the laws where an application is made for them. - For example, an IPR may be eligible for protection in a country, and may not be eligible in another country. - Similarly the protection rules and duration period may be different in a country from another. However, such differences have been minimized through international treaties and WIPO activities.  Turkish citizens and foreigners residing or occupying with a commercial business in Turkey are entitled to apply for protection of their rights under international IP treaties.  Those international treaties ensures equal treatment for everybody.  However foreigners to be entitled to protection of their rights in Turkey, are required to fulfill the relevant terms and material conditions stipulated in the Turkish Law to which Turkish citizens are subject to.  Furthermore foreigners which are not the member to any of those international treaties are also entitled to protection in Turkey according to the principle of reciprocality. How intellectual property law works Intellectual property Law is an umbrella term for all the statutes, government regulations and court decisions that together determine who owns intellectual property and what rights go along with that ownership.

TYPES OF IPL  Trade secrets  Patents  Trademarks  Copyrights  Designs SPECIFIC TYPES  Biotechnological inventions  Pharmaceuticals  Plant protection products TRADE SECRET LAW Trade secret law affords the owner of commercial information that provides a competitive edge the right to keep others from using such information if the information was improperly disclosed to or acquired by a competitor and the owner of the information took reasonable precautions to keep it secret. COPYRIGHT LAW Copyright law protects all types of original creative expression, such as that produced by authors, composers, artists, designers, programmers and Web page designers. Copyright law does not protect the ideas and concepts underlying an expressive work; it only protects the literal form the expressive work takes. Expressions rather than ideas The fundamental principle is that a copyright protects the expression of an idea rather than the idea itself.  Copyright arises automatically upon the creation of the work, registration is not needed.  Copyrights are considered to have been created when they are made.  Unlike industrial rights, copyrights do not need to be proven by means of a registration under Turkish Law. A copyright provides its original owner with a number of exclusive rights in the copyrighted work. These rights can be summarized as the right to prevent others from exploting the work for commercial purposes or for using it in a way that substantially prevents the author or developer from realizing expected profits. RIGHTS  The exclusive right to make copies of the work  The exclusive right to prepare derivative works  The exclusive right to perform the work  The exclusive right to display the work in a commercial setting  The exclusive right to market or distribute the work. Rights  Economic rights  Moral rights

The relevant rights The relevant rights are the reproduction right, the distribution right and the right of communication to the public. Copyright in a photograph is a set of rights held exclusively by the copyright owner-the right to use the photograph in certain ways and the rights to prevent others from doing the same.

Computer programs Computer programs and preparatory works which subsequently lead to a program, are protected by law 5846 on intellectual and artistic works as per the Bern Convention as scientific or literary works. The relative right may belong to a natural or a legal person, irrespective of the nationality of the author, if the work has been communicated to the public for the first time in Turkey. Programs of foreign authors are protected in Turkey if communicated to the public in Turkey or subject to the relevant provisions of international treaties to which the Country is party. Qualifying for a copyright  Originality  Fixed in tangible medium of expression: The work must be fixed in some way –on paper, on film, as a digital file. TRADEMARK LAW Trademark law protect the distinctive (unique, creative or well-known through use) names, designs, logos, slogans, symbols, colors, packaging, containers and any other devices that are used by businesses to identify the source of their goods and services, and distinguish them in the market place. This protection can last indefinitely. For example, copyright protects the actual words used to write a novel about life on a submarine where the crew faces almost certain death because of damaged engines. But copyright won’t prevent other writers from either writing novels about submarine life or using the same basic plot, as long as they don’t copy the novelist’s literal expression. Copyright protection lasts a long time. PATENT LAW Patent law gives the inventor of a new and nonobvious invention the right to exclusive use of that invention for a limited term. LEGAL BASIS OF IPL The sources of intellectual property laws vary according to the subject matter. Besides legislation, court decisions interpreting and enforcing applicable statutes also provide an important source of intellectual property law. INTERNATIONAL ORGANISATIONS World Intellectual Property Organisation (WIPO) European Patent Organisation WIPO The Convention Establishing the World Intellectual Property Organization (1967)

- An international organization dedicated to ensuring that the rights of creators and owners of IP are protected worldwide and that inventors and authors are recognized and rewarded for their creativeness.  WIPO Agreement does not define IP but gives the subject matter protected by IPR: - Literary, artistic and scientific works, - Performance of performing artists, - Phonograms, and broadcasts, - inventions in all fields of human endeavor,         

Scientific discoveries, Industrial designs, Trademarks, service marks, and commercial names and designs, Protection against unfair competition, and All other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. WIPO is a specialized agency of the United Nations. Exists as a forum for its Member States to create and harmonize rules and practices to protect IPR WIPO also provides international registration systems for patents, trademarks, apellations of origin and industrial designs. This simplifies the process for simultaneously seeking IP protection in a large number of countries.

INTERNATIONAL LAWS  Berne Convention, 1886- governs rights in copyrights  Paris Convention and the Patent Cooperation Treaty-international patent rights and trademarks  Rome Convention on the protection of performers, producers and phonogram and broadcasting organisations  GATT (General Agreement on Tariffs and Trade)-trade secrets  Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the purpose of Patent Procedure (1977)  Hague Agreement Concerning the International Registration of Industrial Designs (1934)  Protocol Relating to the Madrit Agreement Concerning the International Redistration of Marks (1989)  Locarno Agreement Establishing an International Classification for Industrial Designs (1968)  Nice Agreement Concerning to the International Classification of Goods and Services for the Purposes of the Registration of Marks (1957)  Strasbourg Agreement Concerning the International Patent Classification (1971)  Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks (1973) TRIPS AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS

The TRIPS Agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994.  PREAMBLE  PART I General Provisions and basic Principles  PART II Standards Concerning the Availability, Scope and use of IPR 1. Copyright 2. Trademarks 3. Geographical Indications 4. Industrial Designs 5. Patents 6. Layout-Designs (Topographies) of Integrated Circuits 7. Protection of Undisclosed Information 8. Control of Anti-Competitive Practices in Contractual Licences  PART III Enforcement of IPR 1. General obligations 2. civil and Administrative Procedures and Remedies 3. Provisional Measures 4. Special Requirements Related to Border Measures 5. Criminal Procedures    

PART IV Acquisation and Maintenance of IPR and Related Inter-Partes Procedures PART V Dispute Prevention and Settlement PART VI Transitional Arrangements PART VII Institutional Arrangements; Final Provisions

The Bern Convention Berne Convention on Literary and Artistic Works of 1886 which began with 11 countries and now boasts of 117 was revised in 1971 (Paris Revision) and amended in 1979. Turkey was an early signatory to Berne and ratified the Paris Revision in 1995. LEGISLATION  Unfair competition rules of TCC  Code of Obligations (Nu. 818, Date of acceptance 22.04.1926, OJ 29.04.1926/Nu.359), contract of publication (Art.372-385)  FSEK, 5846 (modified by Law nu.4110, dated June 7, 1995)  Decree Nu. 551 for the Protection of Patents  Decree Nu. 554 for the Protection of Industrial Designs  Decree Nu.555 for the Protection of Geographical Indicia  Decree Nu.556 for the Protection of Trademark  İnternet Ortamında Yapılan Yayınların Düzenlenmesine Dair Usul ve Esaslar Hakkında Yönetmelik (RG. 30.11.2007, Sayı: 26716)  04.05.2007 tarihli ve 5651 sayılı Internet Ortamında Yapılan Yayınların Düzenlenmesi ve Bu Yayınlar Yoluyla İşlenen Suçlarla Mücadele Edilmesi Hakkında Kanun  Internet Toplu Kullanım Sağlayıcıları Hakkında Yönetmelik (RG. 01.11.2007, 26687)  Telekomünikasyon Kurumu Tarafından Erişim Sağlayıcılara ve Yer Sağlayıcılara Faaliyet Belgesi Verilmesine İlişkin Usul ve Esaslar Hakkında Yönetmelik

The European acquis on IPL  Directive on the harmonisation of certain aspects of copyright and related rights in the information society (2001/29/EC)  Directive 93/83/EEC aims at facilitating the cross border transmission of audiovisual programmes, particularly broadcasting via satellite and retransmission by cable.

EU DIRECTIVES  The objective of the Directive on the resale right for the benefit of the author of an original work of art (2001/84/CE) is to provide a balance between the economic situation of authors of graphics and plastic works of art and that of other creators who benefit from successive explotations of their works.  The protection of semiconductor’s topographies is harmonised through Directive 87/54/EC.  The Directive 96/9 EC on the legal protection of Databases creates a new sui-generis right for database producers, to protect their investment.  Directive (93/98/EEC) harmonises the terms of protection of copyright and neighboring rights for each type of work and each related right in the Member States.  Directive 92/100/EEC harmonises the provisions relating to rental and lending rights as well as on certain rights related to copyright.  The Directive 91/250/EEC harmonizes Member States’ legislation regarding the protection of computer programmes. UNFAIR COMPETITION RULES Courts are frequently asked to intervene when one business uses unfair tactics to compete with another business. Among the unfair tactics the courts have condemned is a business trying to lure customers away from a competing business by confusing customers away from a competing business by confusing customers as to which business or products they are dealing with. The most common way to confuse customers is for a second business to market its goods or services under a name or other mark that is confusingly similar to that used by the first business on its goods or services. Unfair competition is not usually considered a separate branch of intellectual property law, as it targets general business practices rather than intellectual property as such. However, because the use of misleading names and marks to improperly lure customers away from another business is also very much what trademark law is concerned with, the two types of law often overlap. EXAMPLE The name used by Joe’s Pizza is very ordinary and not distinctive enough to be considered a trademark. If, however, another business opens up down the street under a “Joes’s Pizza” sign, the courts may use unfair competition laws to force the second user to modify the name to distinguish it from the first. FSEK, 5846 FSEK is a general statute that, with some exceptions (i.e. Pharmaceuticals) covers the basic aspects of almost all rights that can be categorized as intellectual property rights.

SCOPE of FSEK  Literary and scientific works  Music works  Visual art works  Motion picture works PATENT LAW Decree No.551 was published on June 27, 1995 (O.G.22326). It grants patent protection to all innovations that surpass the prevaling technology and that can be successfully put into operation. Who can apply for a patent? The right to apply for a patent belongs to the person who has invented the patentable process, his successors and assigns.A patent can be owned by more than one person if there is a multitude of investors. Inventions  Employee inventions  Free-lance inventions Employee inventions Employee inventions are those that are invented by an employee while he rendered services under his employment arrangement, but which invention largely dependent on or was prompted by knowledge or skills acquired or made available by the employer. The employee is required to inform the employer of any such inventions. The employer is entitled to claim full or partial ownership of the invention within 4 months of such notice. When the employer duly claims full or partial title to the invention, he is required to compensate the employee at a rate that is determined based on the economic usefulness of the invention. The employer is required to apply for a patent, failure of which will also result in the loss of employee invention status. Free-lance inventions A free-lance invention, unless it is clearly not related to the business of the employer, must also be notified by the employee. If the employer claims any right to the invention, he must raise such claim within 3 months from such notice. In any event, if the invention can be used by the employer in its business or in business which the employer intends to engage in at such time, the employee must grant the employer a right of first explotation of the invention. The employer can exercise the right of first explotation by notice within three months from the date it is notified of such invention. Its failure to do so releases the employee to exploit the invent in through any third party. PATENT PROTECTION Patent protection, if awarded, lasts for 7 or 20 years. The former applies to patents issued without an examination and the latter applies to patents issued after an examination. A certificate of useful model, provides protection up to 10 years. INDUSTRIAL DESIGNS

Decree No.554 grants ptotection to all creative design work that is new, not seen before, and that is distinguishable from other similar works. Such designs are granted protection for 5 years from the date of application, renewable in 5 year up to 25 years. Applications are filed with the Turkish Patent Office. The Turkish registration system adopts the international classification for industrial designs which identifies each category of design by a different number code. GEOGRAPHICAL INDICIA Decree No.555 enables applicants to obtain an ‘indicia of origin’ or to use the ‘name of origin’ that identifies the region in which a particular products originated. COPYRIGHT LAW Copyright protection is available for intellectual property pursuant to Law No:5846 (FSEK). Elements: 1) Work 2) Author The author’s rights  Moral rights  Financial rights Infringement; remedies  Civil proceedings  Criminal proceedings UNFAIR COMPETITION  In Turkey, unfair competition is prohibited under the general scope of Code of Obligations and the Turkish Commercial Code.  It is also prohibited by Antitrust Law, Antidumping Law, and statutory decrees relating to trademarks, patents, utility models, industrial designs etc.  Code of Obligations, Art.48 may be applied to unfair competition between nonmerchants.  Unfair competition between merchants is regulated within the Art.56-65 of the TCC.  General definition of Art.56 of TCC: Unfair competition is the misuse of economic competition through misleading actions untrue statements or any other type of action that is not in accordance with good faith principles. ELEMENTS  Competition in economic sense  Abuse of the competition  Violation of principles of good faith TCC, Art.57 provides examples of unfair competition  Discrediting others or their goods, activities, or products or their business affairs by wrong misleading and unnecessarily offensive statements. For example, acts aiming to distort a competitor’s commercial reputation or lodging an unjustified law suit to offend him may be considered unfair competition.  Giving untrue information about another’s moral values or financial capacity.

The activities of the press where incorrect information for a merchant is provided to the readers may cause unfair competition.  Giving wrong and deceitful information regarding one’s own situation, goods or products, misleading statements made in favour of oneself or of a third party, to put them in a favorable position are also considered unfair competition.  Acting as if one had obtained a distinction, degree or reward without having obtained the same and trying to create the impression that one has exceptional capacities or using false titles or professional names which may be create such impression. For example, if someone who is not entitled to use the title “authorized dealer” uses such title, this may constitute unfair competition.  To create confusion with the goods and products, the activity of commercial undertaking of another person particularly using or imitating names, title, marks, signs or similar distinctive means legally used by another person, or selling or keeping for a reason other than personal need. Imitating or using another person’s trademark or patent without license may cause constitute an infringement of trade mark and patent rights.  To provide or promise certain advantages, direct or indirect, convince the competitors’s employees, agents to breach their business obligations is considered to be unfair competition.  Abusing the employees, agents or assistants of the competitor to disclose and obtain the trade and manufactoring secrets of the competitor.  To gain unfair advantage from trade and manufactoring secrets obtained in contrary with good faith and disclosure them to the others.  Issuing untrue certificates of good capacity to deceive persons in good faith. It may constitute unfair competition to draft a reference letter for someone stating that he is a reliable person when in fact his employment was terminated on grounds that he had disclosed commercial secrets of his employer. Failing to comply with the conditions and regulations of business life determined by law, regulations, contract or local customs which are effective for the competitors. If a merchant is performing his activities without obtaining certain approvals from official authorities (which are equal requirement for all merchants working in the same area) then such a failure of the merchant may be considered unfair competition. Persons who may bring legal actions in case of unfair competition  Persons whose economic interest are damaged. Every competitor suffered damage is entitled to sue.  Customers whose economic interests are infringed.  Professional or economic organizations. Types of legal actions  Declaratory action  Prohibitory action of unfair competition (Injunction)  Action to remove or rectifying the unlawful situation.  Action for compensation of damages.