Av. Serhat Koçblog, English_1, IT&IP_Law

Introduction

Overview

The following report intends to provide a general overview of the regulatory environment for the video game industry in mainland Turkey. The video game market in Turkey differs from that of the European Union and the United States in several important ways, including relatively high levels of software piracy and a fragmented chain of regulatory authority. Withstanding, this however the Turkish video game industry has still displayed a positive outlook over the past six years. The video games industry has an estimated $ 100 billion dollar value, albeit the considerable markets share dominance of Korean and Chinese stakeholders. The young demographic of Turkey, suggests this industry has further potential for growth and demands increased investment , notably in content development targeting regional and national interests.

Intellectual Property (IP) and Piracy Infringement

One can consider Turkish IP regulation in most part fully compatible with the European acquis. However the current administrative and implementation procedures have created a number of potential issues:

  • The control and audit mechanisms in place are inadequate;
  • The numbers of specialized courts are overwhelmed by demand, leading to a considerable case back log.
  • Deficiencies in the investigation and prosecution procedures about the IP crimes result in a high rate of case dismissals;
  • Flawed evidence collecting practices of the police forces;
  • If any invoice or license is submitted to the authorities in the investigation process, from time to time actus and mens rea can be deemed conflictual.
  • Expert reports not written in an accessible and digestible form for the benefit of the courts;
  • The level of fines inflicted on the suspects are minimal;
  • Judges mostly apply the judicial procedure of “postponing the announcement of the order” and that adversely affects the deterrence of their decisions;

Ministry of Culture and Tourism is planning to amend the current legislation for a number of reasons including full harmonization with a number of EU Directives as envisaged in the latest National Program; problems and latest developments about collective societies, some procedural provisions, rearranging some articles of the current Law which conflict with each other, provisions about the digital field and clarifying some of the vague definitions in the current Law. The latest plan of the officers of the Ministry is to share the latest draft with the collective societies nowadays to get their views. It is believed that it would be of importance to follow the progress about the draft law.

Apart from the provisions of the Law no 5846 and its secondary legislation, fiscal regulations in Turkey might also create measures to foster the combat against software piracy. Provisions of the tax regulations would allow for software invoices to be requested in the course of tax audits and inspections. Although the current legislative framework seems to already allow for the application of such procedure, for the sake of enforcement, Ministry of Finance can issue a Circular to state that “in all sorts of financial inspections and tax audits; businesses should be requested to show the invoices of the software that they use” and “if they fail to do so, necessary procedures would be conducted for the application of tax assessment, loss of tax and other sanctions. Additionally, in case of the business to fail to submit an invoice; right holders might be notifies about this failure as there would be a suspicious situation in accordance with article 75/2 of Law no 5846 which states that right holders would be notified by the related authorities in case of a violation so that they can use their rights to make a complaint.

On the strategic side, Turkey’s candidacy to become a member of the EU and its commitments in that regards holds critical importance. IP Law is Chapter 7 of the EU acquis and the EU has opened negotiations with Turkey for this chapter in June 2008. Turkey has made several commitments to EU about IP Law and the last Accession Partnership document designates addressing piracy as a short term priority of Turkey. The latest Progress report of the EU addresses the following about the current position of Turkey in terms of IP Law and practice:

“Overall, alignment with the acquis is relatively advanced. Coordination and cooperation between the IPR-related public bodies and their specialization have improved. However, enforcement remains insufficient. Adoption of the aligned and updated laws regulating intellectual and industrial property rights, including criminal sanctions, is crucial. Turkey needs to address these in close cooperation with the IPR-holders. Engaging in an IPR dialogue, as suggested by the Commission, is crucial.”

EU’s specific request here for a close cooperation with the IPR-holders is very significant. Turkish authorities who would be the parties to conduct cooperation with the IPR-holders would be Ministry of Culture and Tourism, Copyrights and Cinema General Directorate, Intellectual and Industrial Property Coordination Board, State Planning Organization, Ministry of Interior- Turkish National Police, Ministry of Industry and Trade, Ministry of Finance, Ministry of Transport, Information and Communication Technologies Authority (ICTA), Undersecretariat of Customs and collective societies as bodies regulated by Law no 5846 to represent right holders in the IP domain. In addition to communications with the conventional policy making and enforcement bodies of the IP Law field, such as Ministry of Culture and Tourism, Copyrights and Cinema General Directorate, National Police Force etc. it is of great importance to advance communications with the Ministry of Transport and ICTA as well as the Ministry of Industry and Trade and the Ministry of Finance (in terms of support and incentives provided to the software industry under the execution of those two ministries) as bodies behind the economy created by software industry. Creating a collaborative environment between these bodies and the conventional ones would foster the software related policy making and enforcement strategies and furnish a more beneficial position.