Scope and Significance of the Report

Türkiye was granted candidate country status to the European Union ("EU") in 1999. Accession negotiations between the EU and Türkiye began in October 2005. Within the framework of the accession negotiations, 16 chapters, including on intellectual property law, were opened and one chapter was provisionally closed. Accession negotiations have been paused since 2018.

The European Commission ("Commission") publishes country reports for candidate countries and potential candidate countries every year. The 2023 Türkiye Report ("Report"), which is the 25th report prepared for Türkiye, was published on 8 November 20231 . This article discusses the Commission's findings regarding the state of intellectual property law in Türkiye.

Report's Findings on Intellectual Property Law

The findings of the Report are analyzed under three main categories: copyright and related rights, industrial property rights and enforcement of rights. The EU has harmonized legislation regarding the legal protection of intellectual property rights (IPR), including copyright and related rights protecting books, films, computer programs or (radio-television) broadcasts, as well as industrial property rights protecting patents, trademarks, designs, biotechnological inventions or pharmaceuticals. These rights have been enforced through various regulations2 and directives3.

Overall, the Commission states that Türkiye is in a good position in terms of alignment with EU legislation. However, it reveals that no progress has been made on the implementation of the recommendations made in the previous year's report4 5. According to the EU, the primary issues Türkiye needs to resolve are legislative inconsistencies and enforcement issues, with particular consideration for judicial processes.

With regard to copyrights and linking rights, the Report mentions that Türkiye has amended Law No. 5846 on Intellectual Property and Artistic Works ("FSEK") to extend legal protection of technological measures to all works, performances, phonograms, productions and publications in addition to computer programs6.

The Commission has highlighted that the FSEK has not yet been fully modernized to provide adequate protection for copyright and related rights, particularly in light of technological developments. According to the EU, systematic issues continue to persist, such as collective rights management, lack of autonomy and oversight of collective rights management organizations, and discrimination against foreign right holders in the management of these organizations.

The Commission also underlines that several issues remain unresolved, including the fair distribution of private copying fees, licensing difficulties, uncertainties regarding online education exceptions, rights of representation issues and unauthorized use of copyright protected materials through online platforms of wellknown e-commerce sites. As of now, Türkiye's legislation and policies do not fully comply with the Directive on Copyright and Related Rights in the Digital Single Market7.

With respect to industrial property rights, it is stated that the TPTO has continued its efforts to strengthen its administrative capacity and digitize its services. According to the Commission, the lack of a precise definition of "bad faith" renders the invalidation procedure for bad faith trademarks ineffective. It was underlined that the cancellation, opposition and invalidation procedures for trademarks are protracted and expensive. In Türkiye, there is no regulation regarding the Additional Protection Certificate8 for patents.

The Commission also highlighted the absence of an effective system for the protection of undisclosed test and other data generated during the authorization process for obtaining market approval for pharmaceutical and agrochemical products. According to the Commission, Türkiye's data protection regime, which has been in place since 2005, is limited and does not cover biological and combination products. In addition, the period of protection envisaged is also limited. According to Turkish law, the duration of patent protection correlates with the length of regulatory data protection; therefore, data protection is automatically lost upon expiry of the patent term.

The most emphasized issue in the Report is the enforcement of intellectual and industrial property rights. It is stated that in the case of commercial-scale IP violations, criminal courts hardly ever issue deterrent fines despite the existence of higher penalties in legislation. Right holders consider judicial processes, including courts of appeal, to be insufficient. There are difficulties and inconsistencies in the adjudication of claims for preliminary injunctions and monetary compensation claims. Right holders have stated that they experience various problems, including financial burdens in the storage and destruction of counterfeit goods. Furthermore, right holders also complain about the overuse of expert opinions.

Despite strong evidence presented by right holders, very few search and seizure warrants are issued and very few counterfeit goods are seized.

Public prosecutors and judges reportedly demand unreasonable additional evidence from right holders to substantiate claims. Preliminary injunctions are difficult to obtain, and the penalties imposed by the judicial authorities have minimal deterrent effect. Law enforcement officials, including police officers and judges, must increase the efficacy of the measures employed against IPR infringements.

The Commission reports that in recent years the number of IP courts in Türkiye has decreased, which has had a negative impact on the quality and consistency of court decisions. Measures to combat counterfeiting in physical marketplaces remain insufficient. New provisions on the notice and takedown procedure were introduced through Law No. 6563 on the Regulation of Electronic Commerce, which also clarified the liability of intermediary service providers and electronic commerce service providers for complaints regarding infringement of intellectual and industrial property rights.

However, stressing that there has been an increase in the sale of counterfeit goods on recognized electronic commerce marketplaces, the Commission emphasizes the importance for Türkiye to implement notice and takedown procedures with an aim to prevent IPR infringements.

The number of customs applications for seizure increased from 2,431 in 2021 to 2,637 in 2022. However, to combat counterfeit goods, it is stated that Türkiye needs to improve its customs practices for transit and export goods. Türkiye is the second largest source country that supplies the counterfeit goods entering the EU9, and customs officials at EU borders are seizing an increasing amount of Turkish goods. Counterfeit goods concern a wide range of products, including food and alcoholic beverages, vehicle accessories and spare parts. Customs legislation in Türkiye is still not fully aligned with the EU.

According to the Commission, awareness campaigns organized by public authorities on the threats counterfeiting and piracy pose to public health, consumer safety, the rule of law, the labor market and the economic benefits generated by IPR-intensive sectors are insufficient and limited. To protect IPRs and prevent the flow of counterfeit goods from Türkiye into the EU, there has to be a stronger political commitment from both sides.

Conclusion and Evaluations

In connection with the findings mentioned above, the Commission concludes that Türkiye should pay close attention to the following:

  • Improving enforcement measures to effectively combat infringements of intellectual and industrial property rights, including online sales of counterfeit and pirated goods; increasing the level of expertise in IP courts and addressing procedural difficulties in obtaining search and seizure orders
  • Enhancing cooperation with IPR holders, particularly for accelerated and simplified disposal procedures
  • Ensuring collection and processing of accurate statistical data, especially regarding judicial processes, to facilitate the analysis of systematic deficiencies

The findings of the Report are based on the conclusion that Türkiye is in a good position in terms of legislative compliance. However, further progress should be made to ensure proper enforcement of rights. The fact that Türkiye is the second largest source after China in terms of the number of counterfeit goods entering the EU causes the Commission to devote a considerable portion of the IPR-related parts of its annual reports to the deficiencies regarding enforcement. In addition, it is important to note that the recommendations in the Report are the same as in 2022, as no progress has been made compared with the previous report.

However, there are some differences between the findings in the 2022 Report and the findings in the 2023 Report. Whereas last year the effects of the COVID-19 pandemic were emphasized, this year there is no mention of COVID-19 at all. From this, it can be inferred that the Commission considers the effects of the pandemic on intellectual and industrial property rights to have completely or largely disappeared.

The 2022 finding of legal uncertainty regarding well-known trademarks has been reinforced in this year's Report by the absence of a definition of bad faith. Accordingly, could it be said that the uncertainty regarding the legal status of applications for well-known trademarks has come to an end? On the other hand, it is unclear what the Commission means by the lack of a precise definition of bad faith since there is no clear definition of bad faith in the EU Trademark Regulation. Yet, a statutory definition of bad faith may cause various difficulties, as the evaluation of bad faith may differ according to the circumstances and conditions in a case. In any case, bad faith is a concept whose boundaries should be clarified through case law.

The previous report's finding that the public legitimization of counterfeiting and piracy stems from the deep-rooted belief that these are petty crimes, but that these crimes are mostly committed by organized criminal networks, was not included in the 2023 Report. Furthermore, it is unclear what specific scientific facts the first finding in the 2022 Report is based on. Finally, the 2023 Report does not mention the transfer of the authority regarding trademark cancellation to the Turkish Patent and Trademark Office as of 10 January 2024 and the consequences of this situation. It is anticipated that the Commission will discuss this matter in its report to be published in 2024.

Overall, compared with many other chapters, Türkiye has made significant progress in the intellectual property law chapter. Implementation of the Commission's recommendations, particularly on rights enforcement, will enable Türkiye to conclude the chapter on IP legislation soon.

Footnotes

1. https://neighbourhood-enlargement.ec.europa.eu/turkiye-report-2023_en.

2. E.g., Trademark Regulation: Regulation 2017/1001 of 14 June 2017 on the European Union trade mark.

3. E.g., Directive on the Protection of Computer Programs: Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs.

4. 2022 Türkiye Report: https://www.ab.gov.tr/ilerleme-raporlari_46224.html.

5. The 2022 Türkiye Report stated that "limited progress" had been made.

6. The amendment mentioned in the Report is the amendment made to Article 72 of the FSEK by Article 1 of Law No. 7346 on the Amendment of Certain Laws, published in the official gazette dated 25 December 2021. Article 72 of the FSEK reads as follows: Neutralizing technological measures: Article 72: To neutralize the effective technological measures provided by the application of protection methods, such as access control or encryption or reproduction control mechanisms to control the use of works, performances, phonograms, productions and broadcasts in order to protect the rights set forth in this Law: a) those who manufacture or import, distribute, sell, lease or hold the products and tools for commercial purposes; and b) providers of advertising, marketing, design or implementation services for products and vehicles shall be punished with imprisonment from six months to two years.

7. Directive 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.

8. The Supplementary Protection Certificate is a sui generis IPR under EU law. This right applies to certain pharmaceutical and plant protection products authorized by regulatory authorities in the EU and aims to compensate for the loss of patent term protection due to mandatory testing and clinical trials in the authorization process of pharmaceutical and plant protection products that extend the scope of patent protection. For more information, see: https://single-market-economy.ec.europa.eu/industry/strategy/intellectual-property/patent-protection-eu/supplementary-protection-certificates-pharmaceutical-and-plant-protection-products_en.

9. See also: 2021 Report on the Enforcement of Intellectual Property Rights in the EU, December 2022. https://taxation-customs.ec.europa.eu/newseu-enforcement-ip-rights-joint-report-european-commission-2022-12-16_en.

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