Professional Documents
Culture Documents
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.
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
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.
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.
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.
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
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.
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.
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
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