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What Kind of Amendments Does the Bill Dated 16 November 2021 Envisage in the Law on Intellectual and Artistic Works Numbered 5846?

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Intellectual Property
General

The Bill on the Amendment of Certain Laws (“Bill“) was brought to the attention of the Presidency of the Grand National Assembly of Turkey on 16 November 2021. The Bill, which consists of 38 articles in total, envisages making significant changes to several laws, including the Law on Intellectual and Artistic Works numbered 5846 (“Law“).

Recent development

The Bill submitted to the Presidency of the Grand National Assembly of Turkey on 16 November 2021 envisages a provision that will completely amend Article 72 of the Law titled “2. Preparation Actions Which Aim at Circumventing Protective Programs.” The said amendment is foreseen in Article 1 of the Bill, which aims to include all works, performances, phonograms, productions and publications within the scope of Article 72 of the Law and to extend the scope of criminal liability in the relevant article as well. In addition, according to the preamble of the Bill, the said amendment aims to harmonize Article 72 of the Law with the EU directive numbered 2001/29/AT.

What alterations does the Bill envisage in Article 72 of the Law?

  • The heading of the Article 72 of the Law, which was once regulated as “2. Preparation Actions Which Aim at Circumventing Protective Programs,” has been replaced with “2. Disabling Technological Measures” so that a more comprehensive heading is used in line with the content intended to be altered.
  • Article 72 of the Law, which was previously provided only for computer programs and sanctioned preparatory actions aimed at rendering protective programs ineffective, was revised to cover all works, performances, phonograms, productions and broadcasts with the Bill of Law.
  • In accordance with Article 72 of the Law, individuals carrying out the acts aiming to “circumvent additional programs developed to prevent illegal reproduction of a computer program” are to be punished whereas the Bill foresees that individuals who commit certain acts aiming to “disable effective technological measures provided by means of protection method such as access control or encryption or reproduction control mechanism dedicated to control the use of works, performances, phonograms, productions and publications in order to protect the rights in the Law” will be punished.
  • The Bill aims to punish those who trade or promote products and tools to disable the technological measures envisaged by copyright holders to prevent unauthorized use. Accordingly, the Bill aims to extend the scope of the relevant article regulating the criminal liability of the individuals who produce, put for sale, sell or keep the program or technical equipment intended to disable the protective programs, by holding liable those who manufacture or import, distribute, sell, rent or hold for commercial purposes products and tools to disable technological measures, and those who offer advertising, marketing, design or application services.
  • The Bill does not bring any alterations regarding the punishment foreseen for the perpetrators who commit these acts and preserves the existing punishment that stipulates “imprisonment from six months to two years” in Article 72 of the Law.

Conclusion

The Bill dated 16 November 2021 aims to redraw the boundaries of criminal liability by expanding the scope of the acts stipulated in Article 72 of the Law. The Bill envisages the inclusion of all works, performances, phonograms, productions and broadcasts in this article, which imposes sanctions on preparatory actions aimed at rendering protective programs provided for computer programs ineffective. Therefore, if the Bill is accepted, the scope of criminal liability and, simultaneously, the scope of protection, will be expanded.