The notice and take down procedure were firstly introduced to Turkish law system with the art. Annex 4 of the Turkish Code of Intellectual and Artistic Works, nr.5846 (hereinafter Copyright Code) in 2004. Another clause that embodies the “notice and take down” procedure is the Code nr.5651 dated 2007 on The Regulation of the Transmissions on the Internet and Fight Against the Crimes Committed through These Transmission (hereinafter Internet Code). “Art. 9 of the Internet Code embrace a similar procedure to Copyright Code Annex 4. It is very clear that notice and take down procedures are the most appropriate institutions to fight against the infringements and crimes committed via Internet.
However, there are several problems regarding the notice and take down clauses in the system. Except from the terminology problems, which will be mentioned further, the crucial problem is in the execution of the procedure. To understand the Turkish system of notice and take down, it is essential to evaluate the two codes together; as they are filling the gaps of each other but it should be kept in mind that the main problems are caused by the art. Annex 4 of Copyright Code.
The procedure is theoretically quite harmonized with its similar regulations around the world. According to the amended para.3 of the art. Annex 4 of Copyright Code; in the circumstances that there is an infringement of the rights of the copyright owners and/or the owners of the related rights by service provider and content provider via Internet, the contents that cause the infringement will be removed pursuant to a notification. Here the legislator tries to provide a double staged protection for the owners whose rights are infringed.
Firstly, to initiate the process, the person whose right is infringed shall turn to the “information content provider” and will make a request to remove the infringing work from the website. If the infringement continues for 3 more days after the notification, the right holder can turn to the prosecution and through the Public Prosecutor; it is demanded from the internet service provider to stop the service that is provided to the infringer; which literally means to restrict the access to the website.
In the art. Annex 4 of Copyright Code the service providers deemed to be the institution that will stop the Internet service. However, the Internet Code expresses that the institution which provides the internet service to the mass access provider and to the subscribers called access provider. As a result, it is not for sure whether the service provider or the access provider is responsible to stop the service and take down the infringing material from the website. Although the terminology has not amended so far, it is accepted in the practice that the service provider in art. Annex 4 corresponds to the access provider in the Internet Code. It is accepted to be the right interpretation in the doctrine and by the jurisprudence as well. But it has to be stated that since there is no such description that corresponds the description of Web 2.0 websites, currently they are also counted as a content provider and undertake the same liabilities.
Apart from the terminological problems, it is clearly seen that the common three-strike rule is not applicable according to the current Turkish system. According to the art. Annex 4, one notification will be enough for the further actions unless the alleged infringer removes the content in question within 3 days. Nevertheless, the real problem here lies in proving that the content provider has been notified. In order to notify the alleged infringer, the presence of a notification address is the only option. But in the Copyright Code, there is no obligation for a content provider to keep its communication information on the website. Here the bylaws of the Internet Code will be applied, which obliges the content providers that run a commercial business on the internet to keep their information on the web site where it can easily be seen. Unfortunately, this little gap leads the execution of the article from notice and take-down procedure towards the restriction of a website, which is accused of copyright infringement.
In practice; generally, the complainant is not able to find the communication information of the alleged website and therefore cannot notify the infringer or send the notification via e-mail however does not hold any kind of verification of safe receipt of the e-mail. Therefore, the second phase of the protection immediately put into force and the prosecutor held for the restriction of the web site and so does the judge. The gap here is in the controlling process whether the contents of the website cause a copyright infringement, which does not operate appropriately. As a result, there occurs a big possibility that a website can be restricted even without the knowledge of the owner of the website. Here the problem lies on the point that actually if the obligation of declaring the communication details on the websites would be enforced totally then both the notifying phase and the controlling duties of the prosecution would work. Thus, there would be no necessity to restrict a website.
This way of execution of the article creates another part of the problem chain, which derives from the art.8 of the Internet Code. According to the mentioned article there are only a definite number of catalogue crimes that allow the restriction of a website, such as prostitution and child pornography. Moreover, copyright infringements do not count as one of them. However, as a result of the above-mentioned application of art. Annex 4 of Turkish Copyright Code, it happens to be another legal basis for the restriction of a website that is completely contradictory to the regulations in the Internet Code.
Furthermore, it is also known that these kinds of restrictions do not reach to an effective solution since firstly these decisions are only valid within Turkey, thus not binding for the access providers settled in a foreign country and secondly, they can be easily circumvented by online means and access to these websites can be easily provided.
It should be mentioned here that the restriction of the famous website YouTube has nothing to do with copyright infringement issues but it was banned for the defamation of Ataturk, the founder of Turkish Republic. However, it initiated number of web site restrictions in Turkey. According to the statistics made by http://engelliweb.com/, a group of activist that protest the restriction of the websites grounding that these activities against Internet is the biggest censorship of our age, there are more than 22.000 restricted websites[i] depending on the violation of variety of rights. As to copyright infringements, the restriction of MySpace Turkey, Last.fm and Vimeo caused the loudest protest in the country. Not only the users but also the artists that provide their own creations on those websites were very unhappy, since because of the infringement of copyright of some right owners the whole website was restricted. The restriction requests mainly made by the most active collecting society, MUYAP, where there was a legitimate claim for their requests. However, it is still unknown whether the notice and take down procedure was executed properly. It is also important to note that today MySpace Turkey is accessible, as the parties of the matter in dispute declared that they reached to a financial and ethical agreement on the issue of copyright infringement.
As a conclusion it should be stated that although the aim of notice and take down procedure is to fight against the infringement of copyrights and the catalogue crimes mentioned in Internet code, the practice shows big obliqueness from this aim. The procedure moves towards to more restrictive point of view rather than reaching to a solution. Therefore, the notice and take down system commonly thought as a tool to restrict the access to a website, which generally does not work at all. Nevertheless, the actors of the IP and IT worlds do believe and insist that the notice and take down system can work effectively, when the actual process will be enforced properly and when it is diverted by the law enforcement bodies to be used by the right owners instead of the process of restriction.
[i] http://engelliweb.com/istatistikler/