Impediments in Implementations of Combat against Pirate and Proposals for Solution - Turkey

Today, the most significant studies oriented towards protection of Intellectual and Industrial Property Rights have been carried out under the heading “Combat Against Pirate”. Considering the fact that in general pirate music or motion picture materials, or pirate printed books could easily reach at the smallest districts all over Turkey, the phase attained in the combat against pirate can also be easily assessed.

Today, the most significant studies oriented towards protection of Intellectual and Industrial Property Rights have been carried out under the heading “Combat Against Pirate”. Considering the fact that in general pirate music or motion picture materials, or pirate printed books could easily reach at the smallest districts all over Turkey, the phase attained in the combat against pirate can also be easily assessed.

Nevertheless, to date, primarily the Law No. 5846 on Intellectual and Artistic Works (Intellectual Property) in order to be able to carry out the fight against pirate most convenient and effective amendments and revisions have been made on the respective laws over and over too many times, specialized courts have been set up, special units have been formed in the Security Forces, unfortunately the desired result could never be attained.

Recently, various amendments have been made in Articles 137 to 146 of the Law No. 5729 and in the Law No. 5846, specifically at some punishments the upper limit has been determined as “5” year imprisonment, amount of the pecuniary fine has been designated as the administrative pecuniary fine up to 5000 days. Previously while these two punishments were user as optional, with the latest arrangement the way that the said two punishments could be used jointly has been opened. When all of these amendments are considered together with the revisions made in the Law no. 5846 until now, we are in difficulty to guest that the intended effective struggle and fruitful results could be achieved. Because, until now, numerous amendments have been made specifically in the amounts of punishments and these punishments have been reflected to implementations and practices, but no fruitful result could be achieved.

In this respect, we have begun to think that the primary problem has been originated from deficiencies or faults encountered in the course of implementations.

What we must state first of all is that methods which are used at the actual fight and struggle, albeit achieve mostly successful results in terms of quality, have been far below the required level in terms of quantity. In great cities even if their quantity becomes sometimes inadequate, while specialized units rendering their services, lack of professional and knowledgeable personnel at other locations has been remarkable. At the same time, in some units rendering services in relation with the issue, implementations on combat against pirate seemed less important than the other legal implementations; in case of both circumstances, appropriate trainings should be provided and eventually they should be corrected.

* Istanbul Bar

If we should explain the issue somewhat in detail; implementations regarding combat against pirate have been carried out and enforced predominantly by the Security Divisions established within structure of the Security Departments. Since rather great number of personnel have been employed at the Security Divisions in great cities, both on-the-job training on fighting against pirate and implementations on fight against pirate have been accomplished at much more greater numbers. Personnel at these units have been learning the issue very well, gaining experience at methods of fighting against pirate, and better absorbing the sprite of the issue. The fact that firms and law offices which fight against pirate have been much more active in great cities has been making also contribution to this situation.

At locations other than great cities however deficiencies have been encountered in the personnel in charge arising from mainly lack of training, motivation and practice. In such a case, there rises various unfavorable consequences ranging from failure to accomplish operations in due time to the fact that offenders aware of the situation or the operation made was incomplete or faulty.

In order to be able to prevent such unfavorable results, along professional and technical trainings, motivation trainings containing also the importance of the issue should be provided to the personnel; personnel must be provided with such particulars as necessity and benefits for fighting against pirate, awareness for damages that may come up if such fighting has not been made. Otherwise, the belief, which has been included in some personnel that those who are unable to procure originals of products due to presence of their counterfeits have been ensured to acquire also the same products and even as such has been necessary, could not be ruined.

Similar problems may have been also witnessed occasionally at office of prosecutors and courts. Particularly at rural courts and office of prosecutors, implementations and enforcements of the law no. 5846 have been encountered very often, executive bodies or other personnel who face with certain situations related with the issue at the first time while interpreting and construing the issue may fall in judicial error, and sometimes however they may approach to the issue in parallel to their own personal thoughts. In order that this situation is to be hindered, it is required that executive samples of the Law No. 5846 and written legal opinions should be dispatched to all executive bodies all over the country.

At the phases of investigations and trails of suspects who were caught, not much more problems have been encountered at prosecution offices and courts whose relations with the issue are dense. However, some units of court and prosecution could make implementations which are contrary to the law and natural course of the life. Examples on this matter are as following:

a) The first problem arises on requests for search towards suspected locations; it has been absolutely realized also by executive bodies that some courts have never accepted the search warrant. Among their justifications for rejection the followings are the justifications which have been put forth mostly: “Determination of evidence must be made through the Civil Court” or “Bring further evidence to us”. Nevertheless, prosecution offices and courts unfortunately request bringing evidences from suspected locations so much so that one may think that they do not have adequate information about the natural course of the life or that they do not attach great importance onto the issue. However, it is obvious that a firm or a lawyer is unable to take physical evidence from any business place or from an enterprise which makes production secretly. For example, a counterfeit product does not have any slip or bill; or its photograph cannot be taken as desired; agent cannot be used; witness cannot be heard, because to do so is dangerous; witness of the lawyer cannot be binding; or nobody can record into a document that a counterfeit software has been loaded on a computer; such a situation can be achieved only when entrance made into the said enterprise together with security forces. Besides, we do not want to discuss even the meaningless of the civil court’s thought requiring that determination of evidence be made. It is the matter of curiosity that what kind of operation may be performed by making a visit with a judge of civil court and a bailiff to a place where counterfeit book or counterfeit CD has been sold. At such kind of transactions regarding determination of evidences, usually support from security forces has not been demanded and search operation to find any material concealed in the location subjected to the operation has not been carried out. Therefore a lot of illegal materials have been escaped from notice.

b) Rulings rendered during the investigation or trail stage to the effect that Prosecution is Unnecessary or Ruling of Acquittal however bring before us interesting justifications. For example; ruling of acquittal or of KYO (Prosecution is Unnecessary) has been rendered on ground of the fact that owner of a computer having counterfeit software loaded on the date when a determination was made at a computer firm was another person, and subject matter of the offence, even if the computer belonged to another person, is that the software has been loaded at that business place could not be told and explained sometimes to the authority of prosecutor, sometimes to the contestant authority and sometime to the respective court.

c) A computer which has been caught with a counterfeit product in it could be released back to the defendant (suspect) without its examination by an expert. Here, fault of the office of prosecutor however could be ignored and neglected by the related Authorities. Nevertheless on matters of such kind of investigations a procedure may be prepared by the Ministry and it may be suggested that all offices of prosecutor and court should observe the rules of the said procedure.

d) It must be required that security units and offices of prosecutor should act jointly and ensure technical tracking of persons who grouped or became a gang particularly on production and marketing of counterfeit materials, thus organizations which come up as above should be eliminated. Formerly, while these persons were doing business on individual counters (at markets) now they have been acting under organization. It is a mystery how the revenue has been distributed among them. In order to prevent this situation specifically some of pirates must be examined in the manner as described above and legal proceedings must be performed in the same manner.

e) Specialized courts which have been already established in some great cities have been accomplishing successful implementations on matters requiring specialization. It is a reality that number of specialized courts required to be increased, expanded over different areas, and ensured that adequate number of judges and public prosecutors are to be appointed. However, judge, public prosecutor and other personnel to be employed at these courts should be subjected to much more intensive and qualified training on Intellectual and Industrial Property Rights as was the case before. We are of the opinion that if such trainings are not provided properly and completely, adequate quality and productivity will not be achieved in implementations of specialized courts.

f) Search warrants have been still used mostly in operations pertaining to seizure of counterfeit products. According to our current ordinances execution of warrants for night time searches is very difficult; as a matter of fact it is almost impossible. Therefore on matters regarding violation against the Law No. 5846 it is necessary that legal arrangements to facilitate execution of the night time search warrant are to be made. Otherwise producers and sellers of counterfeit products who follow up deficiencies and gaps in the law and implementations have been taking advantage of these gaps and discrepancies very well.

g) Studies which augment social awareness and knowledge on importance of combat against pirate and damage caused onto the economy and prestige of Turkey by the increase of pirates have been emphasized; e.g. counterfeit computer software. Counterfeit software, albeit sets a great danger for the Turkish Economy, no adequate knowledge and awareness on this issue has been formed. Counterfeiting (piracy) of software, which means Illegal reproduction, distribution and utilization of computer software, becomes a serious threat both on the world economy and Turkey as well. According to researches, rate of counterfeit software in Turkey is around 65% for the present day. Although decrease has been achieved for the last two years, losses have increased in value and its amount exceeded USD. 320 million per annum. A lot of domestic software is not included in the specified figures; and if these figures are added the sum of losses rises up to USD. 400 million. Although figures are rather frightful, such offenses have not been investigated in adequate care and importance. Therefore, primarily the society and executors must be provided with full information on this issue. Visual and printed media have great duty on this matter. Large scale and continuous campaigns must be arranged together with the Professional Unions and other organizations. Otherwise we shall continue to come across with persons who are owner of computer firm or internet café but do not know whether or not their software used are legal.

The last and significant issue however is the slowness of the respective Panel of the Supreme Court of Appeals. As of today very rare prejudication (precedent) decision of the related criminal Panel has arrived to courts. No decision on any matter towards the merit, setting guidance for local courts, has been rendered. We nave been mentioning such a long time that hundreds of files have been subjected to prescription time. Result of this situation however is obvious; none of offenders believes that when his file is appealed his sentence will be executed. Sine the offender knew that he/she would be acquitted, he/she proceeds with his/her actions easily, and as there is not any finalized decision he/she does not receive any different punishment on his/her other offenses, but victims continue to suffer damage, aids to our country have been prevented, prestige of the country however degraded down to “0”. Today, even finalization of sentences imposed shall provide great acceleration in combat against pirate. Thus, a significant portion of individuals who acquire this illegal job as their profession will be forced to serve their punishments.

However, it is once more seen that today executors did not think as above. Until now upon revision on the Law no. 5846, specifically as the result of criminal trail, Court Files which arrive at the phase of the Supreme Court of Appeals have initially waited for their turn for several years and then they have been returned to their respective courts without making any examination at the Supreme Court of Appeals in order that the revisions and amendments so made are to be put into operation; and then files which have been reviewed once more by the local courts have been re-appealed and the same process has begun again. Eventually, court files have been circulated for many years from one hand to another and great majority of their statutory period have been expired, so the same procedure has been followed today; therefore for many years a lot of court files awaiting at the Supreme Court of Appeals have been waiting for their turns to be released to their respective local courts without being subjected to any operation. We feel it unnecessary to repeat consequences that have been arisen from such kind of implementations.

Even if the foregoing particulars which have been briefly stated by us are not the entire amount of problems required to be solved, even solution of them alone will ensure to be able to make very important progresses on the process of fighting against Pirate. Otherwise, current status will continue to prevail. In other words, pirates who have been making counterfeit production and sales for many years, who have been making progress on this issue, and become wholesalers, and whose sentences have not been finalized albeit they were caught repeatedly will become much more powerful; event if quantity of counterfeit material seized increases, their effects will decrease; statutory (prescription) period of much more files will be expired; a lot of sector, mainly music and cinema sector, will suffer much more losses and damages; our country however will also continue to suffer loss of prestige in addition to financial losses both in home and abroad.

Koçali Law Office was established by Lawyer Mr. M. Kaan Koçali in 1997. Koçali Law Office currently maintains its activities in the centre of Ankara at Sıhhiye and continues to serve domestic and foreign clients with its experienced staff in their respective fields.

Koçali Law Office which serves in various fields of law, especially deals with cases in the fields of Protection of Intellectual and Industrial Property Rights and Franchising.

Koçali Law Office, together with ETA Patent Company, offers services on the patent, trademark, industrial design and utility model issues on a national and international basis.

Koçali Law Office also presents consultancy services for ISO 9001 Quality Certificate and implements the procedures on behalf of its clients in obtaining this certificate.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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