Frequently Asked Questions

The current regulation is based on the Act no. 5147 in force as from April 30, 2004 and on its Implementing Regulation published in the Official Gazette no. 25686 of December 30, 2004 pertaining to the protection of the integrated circuit topographies in Turkey.
The object of said Act is to protect the integrated circuit topographies with the aim to ensure a situation of competition and industrial development in this field.

The following persons are entitled to benefit from the protection of the integrated topographies according to article 3 of the Act no. 5147:

- Turkish Republic citizens, natural or legal persons who are domiciled or engaged with industrial or commercial business within the territory of the Turkish Republic as well as persons entitled to file an application under the provisions of relevant international treaties may enjoy protection of integrated circuit topographies in Turkey.

- Notwithstanding the fact it falls outside the scope of the above explanations, natural or legal persons that are citizens of states which grant de jure or de facto protection of integrated circuit topographies to Turkish Republic citizens, shall enjoy said protection according to the principle of reciprocity.

According to article 6 paragraph 3 of the Implementing Regulation, where foreign countries accept registration or announce in writing that they shall register the integrated circuit topographies of the Turkish Republic citizens, Turkey will reciprocate protection. 

The integrated circuit topographies have to meet the requirement of originality to be protected by registration according to article 4 paragraph 1 of the Act reading “Integrated circuit topographies having an original character shall be protected by issuance of a registration certificate”. According to article 5 of the Act, the term “original” means “creation which is the result of its creator’s own intellectual effort and is not commonplace among creators and manufacturers of integrated circuit topographies at the tine of the creation”.  

The protection of integrated circuit topographies starts as from the date on which the integrated circuit topography is put for the first time, commercially to the market at home country or abroad by the right holder or by a third party under his authorization, provided that the application for the registration of integrated circuit topographies is filed in Turkey within two years as from the first commercial launch. Where there is no commercial use, and therefore date of first use, the protection of integrated circuit topographies starts as from the date of application for the registration of the integrated circuit topography in Turkey. 

The term of protection of integrated circuit topographies in Turkey is ten years. In case the integrated circuit topography is not used for commercial purposes and no application for registration has been filed within fifteen years as from the date of its creation, no protection can be claimed after this period unless a situation of secrecy is justified (article 6 paragraph 3 of the Act).
The renewal of the protection of integrated circuit topographies is not possible and after ten years the subject matter of the right becomes public property.

The protection right of an integrated circuit topography belongs to its creator or to his legal successor(s) as provided in article 7 of the Act. In the presence of more than one creator, the joint ownership is valid.
In employment relation, the protection right of an integrated circuit topography created by an officer, servant and workers during the performance of their duties belongs to the employers unless there is an agreement to the contrary, in return of which the employer pays a fee. Failure to reach agreement on the amount of the fee, the amount to be paid shall be determined by the court.

Article 11 of the Act provides that the right holder of an integrated circuit topography shall have exclusive rights for preventing and stopping the following acts that occur without and beyond his consent:

- Except for the reproduction of the part(s) that do no meet the requirement of originality, the reproduction, in whole or in part, of an integrated circuit topography under protection by its inclusion in an integrated circuit or by any other way;

- Importation, sale or distribution for commercial purposes, of protected integrated circuit topography, of an integrated circuit containing such a protected integrated circuit topography or any product containing an integrated circuit topography reproduced in breach of law.

Article 12 of the Act provides that some acts like the reproduction of the integrated circuit topography under protection for non-commercial purposes or solely with the purposes of evaluation, analysis, research or training; importation, sale or distribution with commercial purposes of an integrated circuit topography under protection or an integrated circuit having it thereon after said integrated circuit topography or integrated circuit is released at home or abroad by the right holder or under his consent, can be done freely without necessitating the authorization of the right holder. These acts remaining outside of the scope of protection for integrated circuit topographies concern in summary personal use exception. 

The application for the registration of the integrated circuit topography shall be filed before the Turkish Patent Institute/TPI (article 13) and the following information and documents be submitted according to article 14 of the Act and to article 8 of the Implementing Regulation:

-  integrated circuit topography’s applicant name, surname and address;

- original commercial use date of the integrated circuit topography or a statement declaring such use has not occurred;

- a power of attorney if an attorney files the application for registration of integrated circuit topographies (for the power of attorney, please refer in our web site to FORMS/Power Of Attorney;

- a circular of authorized signature(s) if the application for the registration of integrated circuit topographies is filed in the name of a legal person;

- copies or clear drawings of integrated circuit topography which can be reproduced by means of publication and comprising the data describing the electronic functions performed by the integrated circuit. Where these copies or drawings allow the identification of the integrated circuit topography, copies or drawings related to parts for the manufacturing of integrated circuits may not be filed;

- abstract in written form giving a short and explanatory description of integrated circuit topography (preferably not exceeding 100 words);

- data identifying the creator and where the applicant of integrated circuit topography is not the creator or where there is more than one creator, according to Article 8 of the Implementing Regulation, the applicant of integrated circuit topographies shall declare in the application for the registration of integrated circuit topographies in what way he has obtained the right to apply for registration from the creator(s);

- receipt evidencing that the fee of application for the registration of integrated circuit topographies has been paid.

According to article 15 of the Act, where the application for the registration of integrated circuit topographies does not comply with article 14 of the Act and article 8 of the Implementing Regulation the outstanding points/elements shall be completed within two months as from the TPI’s notification to this effect to the applicant of integrated circuit topographies.
If the documents listed in article 15, namely the petition of application for the registration of integrated circuit topographies, information regarding the identity of the applicant and copies or drawings of the integrated circuit topographies are filed with the TPI on the date of the application, the application is considered to have been filed on the date of receipt and entry of same in the records of the TPI.

The applications of integrated circuit topographies are recorded on the Register of Integrated Circuit Topographies, published on the Bulletin of Patents and then the registration certificate issued by the TPI is sent to the applicant of integrated circuit topographies or its attorney. 

Article 23 paragraph 1 provides that any real person or legal person that files an application of integrated circuit topography or the patent attorneys recorded on the Register are authorized to proceed before the TPI. Paragraph 3 provides that applications in the name of the applicants having their domicile abroad are to be filed and represented by chartered patent attorneys. 

A common characteristic of all the Decree-Laws and Acts enacted in Turkey since 1995 in matter of Industrial Property including this Act on “the Protection of the Integrated Circuit Topographies” is that they are similar in their structures and that their provisions pertaining to: - litigation, - compensation, - competent courts, -infringement, - evidence, - establishment of experts’ opinion through the court as determination of evidence of infringement or to serve as a declaration of non-infringement/similarity, - injunctive relief upon court order, -procedural law, - withholding of infringing goods at the customs under the suspension of release procedure are similar, not to say identical, to a large extent. Accordingly, with this Act, Turkey’s fully integrated and coherent body of industrial property legislation is extended to provide protection for the integrated circuit layouts- designs- (topographies). 

According to article 30 of the Act, those persons who are damaged/suffer from the administrative decisions for  integrated circuit topographies, do have the right of objecting before the Higher Council of Examination and Evaluation of the TPI against the said administrative decisions within 2 months as from the date of notification of the decision. The decisions of the Higher Council can be appealed before the (Specialized) Ankara Court of Intellectual and Industrial Property Rights within 60 days as from their notification to the right holder and further before the Supreme Court.
Under parallel provisions, the Act no. 5147 dated April 30, 2004 rule that in all court actions instituted in accordance thereof and against all decisions of the TPI in implementing them, the competent courts shall be the specialized courts to be established by the Ministry of Justice.
According to article 31 paragraph 2 the (Specialized) Ankara Court of Intellectual and Industrial Property Rights is competent for all actions to be instituted versus TPI by third persons negatively affected or having suffered damage by the decisions of the TPI on the basis of this Act.

According to the 1st paragraph of article 19 of the Act the consumer societies, the bodies, namely Chamber of Commerce and Industry, Chamber of Commerce, Chamber of Industry, Chamber of Shipping, Commodity Exchange, the Union of Chambers and Commodity Exchange of Turkey subject to the law no. 5590 for the Union of Chambers and Commodity Exchange of Turkey enacted on 8.3.1950 and to the Law no. 507 for Tradesman and Artisans Association enacted on 17.7.1964 as well as other interested parties are entitled to demand the nullity of the integrated circuit from the competent Court in Turkey.
Article 20 paragraph 1 rules that the Court’s decision of nullity of the integrated circuit topography shall have retroactive effects.

The Act no. 5147 provides under articles 24 and 11, parallel provisions to ones existing in Trademark, Patent and Industrial Design Acts in that infringement involves, the unauthorized, production, sale, offer for sale, distribution and importation for commercial purposes of integrated circuits incorporating, wholly or partly, the Chip topography under protection pursuant to said Act, as well as the products containing such infringing integrated circuits. 

In accordance with the article 26 of the Act the right holder, within the context of an infringement action for the integrated circuit topographies may claim that the infringement be stopped, the counterfeit goods and their production tools/instruments/means be seized and, where necessary for stopping the infringement, be destroyed and may further claim for compensation of moral and material damages suffered because of the infringement and for the publication in newspapers of the favorable court decision. 

According to Article 26 paragraph 1 (a) and (b) in case of infringement of  integrated circuit topographies; the right holder is also entitled to request from the Court, establishment of an Experts’ Report through the Court to serve as determination of evidence as to the existence of a situation of infringement or as a declaration of non-infringement/non-similarity. 

The Act no. 5147 has parallel provisions structured almost identically to the earlier series of Decree-Laws on industrial property in the matter of injunctive relief upon Court Order and withholding of infringing goods at the customs, the so-called Border Measures.
The Act no. 5147 is also in coherence with the Customs Act No. 4458 to permit, upon complaint, the seizure/withholding, by the customs, of goods infringing intellectual and/or industrial property rights, under protection in Turkey. The withholding is lifted and the customs formalities proceed further unless a court action for infringement is duly instituted or an interlocutory injunction is ordered by the court within 10 days from the date of the withholding by the customs.

The conditions of the compulsory license for the integrated circuit topographies in Turkey  are detailed in articles 37 of the Act covering
- the public interest
- national defense/security
- general health
- the development and boosting of the other vital sectors of the national economy
- or when the use made by the right holder or its licensee is in the nature of restricting/eliminating competition (paragraph 1)

The authority to decide to grant a compulsory license vests with the Council of Ministers (paragraph 2).
In case a public institution/body or a third party has requested a contractual license from the right holder of the integrated circuit topography and that the request has not been accepted within reasonable commercial terms and within a reasonable period of time, the requesting party shall file an application with the TPI for the right of use thereof.
Where the use of the integrated circuit topography becomes significant for the national defense, the development of the vital sectors of the national economy and for the purposes of general health, the request for grant of compulsory license is prepared jointly by the ministry of which the TPI is dependant and the related ministries (paragraph 4). 
The compulsory license for the integrated circuit topographies in Turkey is not exclusive and a fee for the utilization of the integrated circuit topography shall be paid by the right holder. The fee for the utilization of the integrated circuit topography shall be fixed by the TPI (paragraph 6).   

The Law No. 5042 pertaining to the protection of breeder's rights on new plant varieties has been published in the Official Gazette no. 25347 dated January 15, 2004 whereby plant variety rights will be granted registration by the Ministry of Agriculture/General Directorate. The Implementing Regulations of the Law No. 5042 has also been published in the Official Gazette no. 25551 dated August 12, 2004 and amended on March 5, 2007

The plant variety registration proceedings have been carried out by the General Directorate of Protection and Control/operating under Ministry of Agriculture and Rural Affairs and within a new organizational development in September 2008 it has been announced that all the registration process would  be handled by TÜGEM (General Directorate of Agricultural Production and Development- Plant Breeder’s Right Office) which is also an authorized body operating under Ministry of Agriculture and Rural Affairs. 

Nationals of Turkish Republic, or real persons or legal entities with a domicile or an effectively operating business within the territory of Turkish Republic or those persons entitled for application under the provisions of UPOV Act can enjoy the variety protection right.
Meanwhile, any real person or legal entity which do not meet the conditions set in the above mentioned paragraph but is a national of the states granting variety protection on a de facto  basis to the Turkish Republic citizens shall be entitled to enjoy the right of protection in accordance with the principle of reciprocity. 

Turkey’s application for being a member of UPOV was filed on October 21, 2004 and this filing has been favorably considered by General Secretariat of UPOV. Upon completion of the final proceedings in this matter Turkey became the 65. member of UPOV as from November 18, 2007.

The duration of plant variety protection is 25 years from the grant of the right. For trees, vines and potatoes, the said period is 30 years from the said date. Ending date of protection period shall be calculated as to run from the end of the calendar year. 

The plant variety should be

 new,
 distinct, 
uniform, and
stable
in order to obtain protection

The variety is deemed to be new if, at the date of filing of the application for a breeder's right, propagating or harvested material of the variety has not been sold or otherwise disposed of to public, by or with the consent of the breeder, for purposes of using exploitation of the variety, at home where the application has been filed earlier than one year before that date, and abroad earlier than four years or, in the case of trees or of vines, earlier than six years before the said date

Following cases shall not affect the consideration of variety as new:

a. Sales or statements that can be considered, against the holder of the right, as misuse of right (such as license right),
b. Sales or statements that are within the scope of a transfer contract of breeder’s right.
c. Acts, on behalf of the holder, under a propagating contract of material, provided that the breeder preserves the right on propagating material and material is not exploited for production of any other variety.
d. Field or laboratory trials carried out, under a contract, in order to determine the characteristics of the variety or acts related with small size product processing trials.
e. Acts arising from legal procedures for biological security or from the obligations such as entering tradable varieties in the official catalogue.
f. Sales or disposal to the public, for consumption and without defining the variety concerned, of residual products resulting from production of variety or of harvested material of sub-product nature, or materials resulting as the consequence of acts under paragraph (c), (d) and (e) of this Article. 

A variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge on the date of application or on the date of priority right.
A variety is considered as known if an application filed in any State has led to the granting of breeders right or entering the variety in the register on if the commencement of variety exploitation or existence of a variety in a variety catalogue of a professional institution or inclusion in a reference collection is in question

A plant variety shall be deemed to be uniform if it is sufficiently uniform in its relevant characteristics, except those possible variations that are subject to propagation method used. 

Denomination of a protected variety will be its generic designation. While filing the application, the denomination proposed by the applicant or the provisional denomination used by the breeder should be provided. The new plant variety applications should be made with the denomination designated in the cases where denomination is registered and used in Turkey or in a country which is a party to UPOV. The General Directorate, during substantive examination, assesses the proposed variety denomination whether it is suitable pursuant to related provisions of the Law. The denomination of the variety is announced when publication of the registration is made. Obligation to use the denomination applies even after the termination of the breeder’s right. The applicant who proposes the denomination does not have right to obtain a further trademark right for the subject denomination.
The rules of denomination are:

a. The denomination may be composed of a meaningful or meaningless or word combinations, or a combination of words and numbers, or letters and numbers in order to assure the recognition of the variety.
b. The denomination proposed for the variety shall differ from other varieties or shall suffice in terms of linguistics for the recognition of the variety.
c. The denomination shall not contain any expression or phase attacking or violating the public order and general ethics.
d. The denomination shall not be composed of only those indication denoting to the species, quality, quantity, object, value, geographical origin or production date as solely used for the plant varieties and seed business, including the languages of our country and other states that are parties to the UPOV Act.
e. The denomination shall not be liable to mislead or to cause confusion concerning the characteristics, the value or the identity (geographical origin) of the variety for the purposes of relation between the variety and the breeder or the applicant.
f. Proposed variety denomination shall not involve any object of impediment, pursuant to the trade mark legislation, to register a trade mark for the products in relation to the variety.
g. If a denomination is already in use for a variety registered in a member state that is a party to the UPOV Act, the breeder’s right application shall be made under this denomination and the variety shall be registered thereunder. If there are other denominations in other states for the same variety, those denominations used in other states shall be registered with the application register or breeder’s right register. The same provisions shall be applicable for those varieties already registered in Turkey.
h. Proposed variety denomination shall not be identical or be confused with a variety denomination under which another variety of the same or of a closely related species is entered in an official register of plant varieties or under which material of another variety has been marketed in Turkey or in a Member State of the International Union for the Protection of New Varieties of Plant (UPOV).
i. Any party that sells, markets or exploits in any other way, the propagation material for the protected variety shall use the variety denomination. This provision extends to the essentially deriver varieties. Even if the breeder’s right expires, it is obligatory to use the variety denomination.
j. The prior rights of third parties in relation to the disposal of the protected variety shall remain reserved. If the use of the variety denomination is prohibited for a person who has to use this variety due to the prior rights of third parties, the General Directorate shall require the breeder or right holder to propose a new denomination for the variety.
k. Proposed variety denomination may be used together with the trademark, trade name or any other similar indication only if the variety denomination is written in an easily recognizable way.

If a provisional denomination has been proposed in the application petition for the new variety, the General Directorate requests the applicant, just before the registration phase, to submit a final denomination. The applicant has to submit, within 30 days, final denomination for the variety.
When the Ministry approves the denomination, it communicates the denomination to countries party to the UPOV Convention and publishes it in the Bulletin. 

Objections can be lodged, within 3 months from publication date of the denomination in the Bulletin, against the denomination. Authorities of countries party to the UPOV Convention may address their observations on the denomination. Objections and observations shall be communicated to the applicant and he shall be given 30 days term to respond. In case the applicant responds to the objections and proposes a new denomination, the new denomination is published and 3rd parties have right to object against the new denomination. In case no response is received from the applicant the application shall be refused. Motivated decision taken by the Ministry on acceptance or refusal of the objection shall be notified to the parties involved. A court appeal may be instituted within 30 days of notification. 

Owner of the new plant variety files an application in writing with the General Directorate in order to benefit from the plant variety protection. The application for a breeder’s right should contain the following information and documents:
The application form provided by the General Directorate should be filled in and a cover letter addressing to the General Directorate requesting the protection should be prepared. Within the application form the following information should be provided:

a. Name and address of applicant or, where appropriate, his legal representative. (If the applicant is a legal entity, then its notarized circular of signature should be submitted. If the application is to be filed via a representative, a notarized power of attorney confirming that the applicant has empowered the representative to do so is to be submitted)
b. If the applicant is not the breeder himself, the name and address of the breeder and any relevant information and document indicating how the entitlement to the breeder’s right came into his possession.
c. Turkish and Latin name of variety in the botanical taxon
d. The denomination proposed for the variety or provisional designation used by the breeder
e. If priority right is requested for a previous application the application date, number and office of such application.
f. Technical description of the variety. (A variety characteristics form displaying technical specifications of the variety as prepared by the Institution and, when necessary, other relevant documents concerning the morphological/ molecular characterization defining the variety)
g. Where appropriate, details of any previous commercialization of the variety. (If there is a previous commercialization of the variety for which an application for granting the breeder’s right was filed, such details and documents showing the purpose and period of that commercialization; and since when it was offered for the commercialization)
h. The bank receipt proving that the application fee and technical examination fee –where necessary have been paid.
i. The geographic origin of the variety;
j. If requested, any details on any picture, drawing, slide or material to be used to define the variety;

Other Filing Related Issues:

1. Any party with no domicile in Turkey should appoint a representative in Turkey so as to apply for and register a breeder’s right for its varieties, provided that such representative shall have a domicile in Turkey;
2. Turkish translations of those documents in foreign language made by certified (sworn) translation offices shall be attached to the application form;
3. The entire application form and attached documents shall be signed and sealed by the applicant;
4. The page size of the documents to be attached to the application shall be A4 with legible and clear texts and such content and nature that will eliminate any obscurity or ambiguity.

Applicants/breeders with no residence or active business place in Turkey should assign a Turkish representative for filing and registering the breeder’s rights on new plant varieties. A notarized power of attorney confirming that the applicant has empowered the representative to proceed with filing and registration formalities before the General Directorate should be submitted during filing. 

If the applicant or his predecessor in title has already applied for a property right for the new plant variety in a country party to the UPOV Convention, and the date of application is within 12 months of the filing of the earlier application, the applicant shall enjoy priority right for the earlier application as regards the application for the breeder’s right in Turkey. In such a case the date of the application in any party to the UPOV Convention shall be deemed to be the date of application in Turkey.
In order to benefit from the right of priority of the first application, the breeder shall so inform, in the subsequent application, the Ministry in writing. Priority rights not exercised within the prescribed time-period shall be considered to be void.
The authority with which the subsequent application has been filed may require the breeder to furnish, within a period of not less than three months from the filing date of the subsequent application, certified copies and translations of the documents which constitute the first application, and samples or other evidence that the variety which is the subject matter of both applications is the same.
The Ministry, upon the request of the applicant, may provide up to two years period after the expiration of duration of priority to furnish any necessary information, document or material required for the purpose of technical examination. Where the first application is refused or withdrawn, the Ministry may decide to cancel the extension period and require the applicant to furnish the necessary information, document or material required for technical examination in 12 months after the date of rejection or withdrawal.

The General Directorate assigns a Commission to carry out formal and substantive examination of the application. In the formal examination process the Commission considers the documentation and information submitted during filing. If the Commission concludes that the application has been unduly and incompletely filed the applicant is given 30 days to complete the outstanding documents and information. If the applicant fails to complete the file or correct the deficiencies within said term the application will deem not to have been filed. In case the deficiency is related to the priority right the applicant is deprived of his priority right and the application is proceeded without priority right. 

The General Directorate assigns a Commission to carry out formal and substantive examination of the application. In the substantive examination process, the following issues are taken into consideration:

a. If the variety for which an application has been filed is new,
b. If the applicant is entitled to file an application,
c. If the proposed denomination of the variety meets the requirements mentioned in the Law.

Following the substantive examination, if the Commission finds out any impediment to the grant, the General Directorate refuses the application and this refusal is notified to the applicant within 30 days. In case the refusal decision refers to denomination of the variety the applicant is required to propose a new denomination within 30 days. Where the applicant does not respond the decision of refusal is finalized. If no formal deficiency is found the application is accepted by the Commission and is given an application number.

The plant variety application which is deemed to be fully and accurately filed upon formal and substantive examination is registered with the log and is published in the Plant Variety Bulletin within 30 days (The data in the subject Bulletin is accessible via internet www.tugem.gov.tr) 

a. Name, surname and address of the applicant, or if any, its procedural representative;
b. If the applicant is not the breeder, then data showing the name, surname and address of the breeder as well as other information evidencing as to how the entitlement to the breeder’s right came into his possession;
c. Denominations of the variety in Turkish and Latin in botanical taxon;
d. Proposed denomination for the variety, or a provisional designation used by the breeder;
e. If a right of priority for a previously duly filed application is sought, the state, date, number and authority of the first application.

Any opposition to the application can be filed with the Ministry, within three months following the publication of the application in the Bulletin. 

Oppositions can be filed on the grounds that the variety is not new, not uniform and not stable, or the applicant is not entitled as holder or the variety denomination is not suitable pursuant to the related articles. The opposition should be filed in writing together with the supporting evidences and documents. 

The opposition(s) filed to the application is notified to the applicant and the applicant is required to inform within 3 months his observations against the opposition and whether he still maintains his application or claims amendment to the application.
The period given to applicant may be extended for a maximum two months term provided that applicant so requests and this request is based on valid grounds.
Where applicant does not respond within the period given, the application is deemed to be withdrawn. If the applicant informs that he will maintain his application or amend it, the person who filed an opposition is informed and required to provide information, within 30 days, on whether he maintains his opposition.
If the opposing party still maintains his opposition on the basis of his opposition;

a. if the variety is not new, applicant is not entitled as holder, or the denomination proposed for the variety is not pursuant to the related articles, then the General Directorate immediately initiates evaluation of the opposition,
b. if the variety is not distinct, not uniform or not stable, evaluation of the opposition is carried out within the course of technical examination.

The Directorate itself, determines the method of technical examination in order to carry out the examination as required by the grounds of opposition.
The opposing party may be required to furnish, in support of his opposition, additional information, document or propagating material that is the subject of technical examination. If the opposition is within the scope of the above mentioned paragraph (a), within 30 days of the decision of the General Directorate, the decision may be brought before the court for appeal.
Within one month from notification of decision on the acceptance of the opposition based on actual entitlement, authentic holder who files an application for the same variety may request the General Directorate to consider the application date of the previous refused variety as s his application date, if so Ministry shall accept this request.

Subsequent to formal and substantive examination of the application and publication of same in the Bulletin, the variety is subject to a technical examination. The conditions of the technical examination are set by the General Directorate and the examination is carried out under observation of the General Directorate. The criteria in the technical examination are whether the variety belongs to the specified botanical taxon; whether the variety is distinct, uniform and stable (DUS tests). In case the variety complies with the requirements for being distinct, uniform and stable the “Variety Characteristics Certificate” will also be prepared.

a. In the event that DUS tests and other tests required for the technical examination have already been carried out by the competent authority of a state that is party to the UPOV Act, the examination may be based on the results of those tests, provided that the tests results and the related documentation are delivered to the General Directorate and include the name, title, signature of the persons/authority who has prepared the documents. It is important to note that the documentation attesting the test results which are prepared by the applicant himself is not accepted by the General Directorate. The testing results and the related Characteristics Documentation should be prepared by a competent authority which is also accepted by the General Directorate. Meanwhile, these tests must be carried out in those countries with those climatic conditions similar to or same as those ones prevailing in Turkey.
b. In the event that the examination cannot be based on these test results the General Directorate may avail itself of the services of its main service units or subsidiaries or affiliates or other bodies. In the event that technical examination is carried out by other bodies, an additional examination fee is to be paid.

The General Directorate may instruct the applicant to carry out technical examination. Upon the request of the General Directorate, the applicant shall provide General Directorate with the results of growing tests or other tests to be performed by himself or by third parties designated by it. Technical review may be based on the outcome of these tests.

General Directorate requires the applicant to deliver the testing material within 4 months as from the publication of the application. The quantity or the volume of the testing material is designated by the General Directorate. In the event that the applicant fails to deliver such testing materials within the determined term the application will be refused. 

Test materials shall meet those minimum germination standards on the basis of varieties for the seed in the lowest certified class as designated by the General Directorate. Test materials picked up from the variety sample shall be set aside to be used in the DUS tests while the rest shall be retained as the reference sample. The trial period for the variety in the DUS tests shall be at minimum one growing season in ornamentals; three seasons for perennial field plants and trees, and two seasons for other species.
In the event there arises a problem in DUS tests in relation to the variety, these periods may be extended.
For the purposes of conducting the DUS tests, those principles and test criteria, which are laid down in the Plant Characteristic Certificates drawn up based on those UPOV and CPVO technical principles designated for that plant species shall be implemented. If there is not any criterion or characteristic certificate designated by UPOV and CPVO for the plant species under the application, the institution shall lay down those examination criteria by itself.

The Technical Examination Report includes the test results for evaluating the variety’s being distinct, uniform and stable. In case the Report is inadequate supplementary examinations may be carried out and all the reports in this regard and the test results are delivered to the General Directorate. 

a. If the proposed denomination for the variety:
1. does not comply with the provisions set by the Law,
2. does not constitute a different denomination or it is insufficient in respect of linguistics, to recognize the variety.
3. is against to public security and common moral values
4. consists of figures indicating species, quality, quantity, objective, value, geographical origin or the production date which is the only case for the plant variety and seed sector.
5. misleads or create confusion in respect of the properties of the variety, its value and geographical origin or the relationship between the variety and its breeder or between the variety and applicant,
6. the denomination, is identical to or very similar to, leading to confusion, a variety of the same or of a related species is registered in Turkey or in any State party to the UPOV, except the variety has no longer been cultivated or it is not commonly identified,
b. non-compliance with the provisions formal and substantive examination,
c. if the required documentation and variety material has not been timely and duly submitted to the General Directorate,
d. if the variety is not found as uniform, distinct and stable,
e. if the requirements for finalization of the provisional denomination has not been met by the applicant.

Upon favorable completion of the technical examination the breeder’s right is recorded in the Register and the applicant is provided with the Breeder’s Right Certificate and the registration is published in the Bulletin within 30 days as from the decision of registration.
The registration of the breeder’s right in relation to the protected variety shall be published in a bulletin within thirty days from the registration date.

Following details shall appear in the bulletin in relation to the registration of the breeder’s right:

a. The protected variety denomination;
b. Application date and number;
c. If any right of priority is used, then the state, date and number of the first application as well as the denomination of the variety at the time of application;
d. Name, surname, nationality and address of the right owner;
e. If the right owner is not the breeder, then the name, surname, nationality and address of the breeder(s);
f. Date by which the breeder’s right was registered, and the registration number.

Third parties may lodge, within 30 days from the date on which the breeder’s right is published on the Bulletin, an objection to the grant of a right on the grounds that there were deficiencies in the procedures laid down in related articles.
During the course of examination conducted by the General Directorate, if it is established that one of the procedures for granting the right has not been fulfilled, or a significant deficiency occurred in procedures, the General Directorate may decide on that the granting procedure is invalid and go back to the point of procedure where the deficiency occurs.

Upon registration of the breeder’s right on new plant variety, an annual fee should be paid by the right holder to the General Directorate in advance in January as for each year of the duration of the protection.
If the annual fees are not paid within the determined periods, the breeder’s right shall automatically expire. In such a case, it shall be deemed that annual fee was effected as of the payment deadline. This will be published in the bulletin within thirty days.

If the breeder’s right has terminated because the annual fee was not paid within the periods laid down, the termination shall be effective as of the deadline for the annual fee; however, if the right holder communicates to the General Directorate, in writing within six months from the publication of the termination in the bulletin that the failure to pay the annual fee was attributable to the force major events, the breeder’s right shall resume to be valid and enforceable provided that annual fee is paid in such sum and in accordance with such terms laid down by the General Directorate.
General Directorate shall publish the force major notice in the immediately next bulletin. Any concerned party may communicate its opinions to the General Directorate in writing within thirty days following the publication of the force major notice in the bulletin. General Directorate shall consider the application for the force major and the opinions of the concerned parties on a joint basis and then reach a decision.
The General Directorate shall be authorized to restore the breeder’s right in force. Where the General Directorate acknowledges the presence of a force major event, the right shall be restored as of the payment date provided that annual fee is paid. The restoration of the right into the force shall be registered with the log and entered with the bulletin.

The plant variety  right holder is responsible for the continuing existence unaltered of the protected variety or, as the case may be, of the propagation materials retaining their hereditary characteristics as long as the right is in force.
The General Directorate investigates whether, within the protection period, the variety or where appropriate its genetic parts are maintained. The right-holder, upon the request of the General Directorate, is obliged to provide information, documents and material necessary to assess the continuing maintenance of genetic forms of the variety to the General Directorate or an institution designated by General Directorate.
When there are suspicions about the maintenance of genetic form of the variety and these suspicions cannot be eliminated by the information, document and material provided by the right-holder the General Directorate may request an examination to be conducted for maintenance of genetic forms of the variety. This examination shall constitute the comparison between material submitted by the holder and samples and information on the characteristics document of the variety, by conducting growing and other tests.
When the examination conducted indicates that the right-holder failed in the maintenance of genetic form of the variety concerned, the observation of the holder shall be requested before cancellation of breeder’s right.

Where it is established that the plant variety right-holder does not provide the General Directorate with the required documentation, testing material within the determined time limit or fails to fulfill the requirements after grant or the variety has lost its uniformity and stability characteristics, breeder’s right may be ex-officio cancelled by the General Directorate.
The protection right may also be ex-officio cancelled in cases where although Court has cancelled the variety denomination, the right-holder did not propose a new denomination for the variety, within the time limit specified by the Ministry.
Cancellation of breeder’s right shall enter into force from the date of registration in the Register. Cancellation decision shall be published on the bulletin within 30 days from the date of its entry in the Register.

Breeder’s right confers on the holder following exclusive rights for protection of the variety:

a. production or reproduction.
b. conditioning for the purpose of propagation.
c. offering for sale.
d. selling or other marketing.
e. exporting or importing.
f. stocking.

The exclusive rights shall also apply in relation to the varieties:

a. which are essentially derived from the protected variety, provided that the protected variety is not itself an essentially derived variety.
b. varieties which are not distinct from the protected variety.
c. varieties whose production requires repeated use of the protected variety

In case of breeders more than one person, the entitlement shall be vested jointly in them provided that there is no contrary agreement between respective parties.
Each holder of the right is entitled to do following on his own right, independently of other shareholders:

a. He may exercise his right freely in proportion to the respective share held.
b. He may exploit the variety in question after written notification to other holders of the right.
c. He may take any measure necessary for protection of variety concerned.
d. He may institute legal and criminal proceedings against 3rd persons in cases where infringement of the right which results from joint application to the Ministry or granting of the right. (provided that the plaintiff shall inform other shareholders, within one month from date of the institution of the proceedings, in order to enable them to participate to the proceedings)

The applicant has the rights/authorities mentioned above between the date of application and date of grant. 

Where the varieties are bred or discovered and developed by employees during the execution of their duties, the breeder’s right shall be vested in their employers unless otherwise provided by the contract or understood from the nature of the work.
The breeder’s right shall be vested in the employers for the variety that has been bred, discovered or developed by the employee, using the information and equipment available at work, who were not required by the contract.
The employees who bred or discovered and developed the varieties may claim a certain amount of remuneration determined by breeder and employer by taking into account the economic value of the variety. When the parties do not agree on the level of remuneration, it shall be decided by the Court. The parties may determine the level beforehand and so include in the contract.

Breeder’s rights shall not extend to the following acts:

a. acts done privately and for non-commercial purposes;
b. acts done for experimental purposes;
c. acts done for the purpose of breeding other varieties, except acts referred in Article 14 paragraph 5 of this Law. 

The right holder, or its authorized representative is obliged to exploit the propagation material of the protected variety. The compulsory exploitation/use should be realized within three years from the date on which the grant of the breeder’s right has been published in the Bulletin.
The documents proving that the protected variety is in exploitation may be those declarations showing that the protected variety is in exploitation in sufficient quality and quantity and they should be certified by the relevant professional associations, Chambers of Commerce/Industry or other relevant bodies.
On the document proving that the variety is in exploitation should include the date and number of the grant of the breeder’s right for the protected variety, the date of the initial exploitation/use, the declarer’s name, address, signature, and the execution date of the document.

Breeder’s right may be subjected to compulsory license, at the end of the 3rd year from the grant of breeder’s right where commencement of exploitation of the protected variety, increasing its exploitation or spreading of its exploitation are of great importance for national defense or public health purposes; where the non exploitation of protected variety or its insufficient exploitation in terms of quality and quantity causes serious damage to the economic or technological development.
Compulsory license shall be decided by the Council of Ministers upon the proposal of the Ministry of Agriculture. In case, where the exploitation of the protected variety is important for national defense or public health, the proposal is prepared jointly by the Ministry of Agriculture and Ministry of Defense or the Ministry of Health.

The breeder’s rights will be considered as exhausted in cases where any material of the protected variety or a variety which a) is essentially derived from the protected variety, b) is not itself an essentially derived variety c) is not distinct from the protected variety d) whose production requires repeated use of the protected variety, or any material obtained from that material has been marketed/sold by the right-holder or by any third party with the consent of the right-holder in Turkey
However, breeder’s right may be claimed in cases where acts involve further propagation of the variety in question or involve an export of materials (any kind of propagating material, harvested material including entire plants and parts of plants, any product obtained directly from the harvested material) for propagating purposes, to a country which does not protect varieties of the plant genus or species to which the variety belongs.
If export material is for final consumption purposes again breeder’s right shall be considered as exhausted.

The right holder should communicate to the General Directorate, in writing the changes regarding his address and name, transfer of rights through assignment or merger, etc. following the registration date for the breeder’s right within 30 days after the change.
The General Directorate effects the recordal of changes and these changes are published in the Bulletin.

a. Petition of request;
b. A notarized verdict of inheritance;
c. Registration certificate for the breeder’s right;
d. A notarized deed of assignment signed by the assignor and assignee along with their conceding statements, where the protected variety’s denomination is used;
e. If the assignee is a legal entity, then its circular of signature;
f. If the demand for the transfer or assignment is through an attorney, then notarized power of attorney.
g. Receipt showing that the fee was paid;

Contractual license may be granted on the exclusive or non-exclusive basis to be valid within the territory of Turkish Republic.
License agreement shall be executed in writing. Licensee or licensor files an application for recordal of license with the General Directorate with the following documents for the validity of the license agreement.

a. A notarized license agreement setting forth the signatures and declarations of the licensee and licensor, the application date and number for the variety to be licensed, its registration date and number, license fee, duration and justification;
b. Registration certificate of the breeder’s right;
c. Receipt showing that the fee was paid;
d. If the licensee is a legal entity, then its circular of signature;
e. If the application for license is filed by an attorney, then the power of attorney.

The Court may declare the breeder’s right invalid in the presence of following grounds:

a. where the variety does not meet the requirements with respect to novelty and distinctness at the time of application or right of priority.
b. where the variety does not meet the requirements with respect to uniformity and stability,
c. where it was understood that the breeder’s right has been granted to a person who is not entitled to have a protection.

Persons with a legal interest, may request, within the period of protection of the right, from the court the invalidation of the right for the variety concerned. The request for invalidity claming that the application has been filed in the name of an authorized person can only be put forward by the actual/real right-holder. 

A (Court) Decision ruling that the breeder’s right is invalid, will have retroactive effect and thus, within the context of invalidation, the legal protection secured under this Law shall be deemed not to have been borne at all. 

A breeder’s right will terminate upon: a) expiry of the term of protection, b) surrender by the right-holder himself, c)non-payment of yearly fees and additional fees, within the prescribed time-periods. 

The following acts shall be considered as infringement of breeder’s rights:

a. Exploitation of the rights (production or reproduction, conditioning for the purpose of propagation, offering for sale, selling or other marketing activities, exporting or importing, stocking) without the consent of the holder,
b. Despite being aware or being in a position to know that propagating material of a protected variety is produced by virtue of the infringement of the exclusive rights of the holder, preparing the propagating material for propagation, reproduction, offering for sale, selling or other marketing, importing or exporting, or storing the variety for these purposes,
c. Extension of the scope of exploitation rights granted by contractual license or compulsory license or transfer them to third persons without permission,
d. Violation of the related provisions regarding denomination,
e. Usurpation of right
f. Involving in acts foreseen above or assisting or encouraging them or facilitating in any way and under any circumstances, their occurrence,
g. Refraining from declaring the source from where and the manner the products, found in his possession, manufactured or commercialized, unlawfully, were obtained.

A holder of a right whose rights are infringed may, in particular, appeal to the Court for the following:

a. the cessation of the acts in infringement of right conferred by the breeder’s right.
b. remedies of infringement and compensation of material and moral damages incurred,
c. confiscation of products manufactured directly or as a consequence of the infringement of rights conferred and of means directly used in manufacturing such products,
d. recognition of ownership over the products and means confiscated in accordance with subparagraph (c) of this Article. In such cases, the value of said products shall be deducted from the amount of compensation awarded. Where the value of said products happen to be above the amount of compensation determined in accordance with subparagraph (b), the holder shall repay the excedentary balance to other party.
e. precautionary measures for preventing the continued infringement of rights; modification of the shapes of the products and means, or, where inevitable for the preclusion of acts of infringement, the destruction of the products and means confiscated according to subparagraph ( c).
f. the disclosure, by means of publication, to the public and to those related, of the court’s judgment rendered against the party infringing the rights who shall bear the costs for such publication.

Any person who has already instituted a proceeding may appeal the court to order precautionary measures provided that they can prove the existence of acts in Turkey of actual exploitation of the variety or serious and effective preparations to exploit it in Turkey which would constitute an infringement.
The request for precautionary measures may be filed before or with the institution of proceedings or be filed later. The request for precautionary measures shall be examined separately from the proceeding.
Precautionary measure shall be in nature to enable securing of the judgment and particularly provide the following:

a. cessation of the acts of infringement of the breeder’s rights,
b. injunction to arrest within the borders of Turkey, including the customs, free ports or free trade areas and keep in custody, and preserve the produced or imported goods which have infringed the breeder’s rights.

The competent court, for the institution of legal proceedings by the holder, is the court of the domicile of the plaintiff or of the place where the offence was committed or of the place where the act of infringement produced effect.
Where the plaintiff is not domiciled in Turkey, the competent court is Ankara courts
The Competent Court, for the institution of proceedings by third parties against the applicant or the holder, is the court of domicile of the defendant. Where the applicant or patent right holder is not domiciled in Turkey, the provisions of the 3rd paragraph of this Article shall apply.
Where several courts are competent, the court before which the proceedings are first initiated shall be the competent court.
Where the Ministry is the plaintiff or defendant, the competent court is the court where the headquarters is located.

The aim of the law no. 5042 is to encourage the development of plant varieties and to ensure protection of new varieties and breeder’s rights. The right owner obtaining protection under the scope of this law has a right until the termination of the right with respect to the new variety. However, in order to market, sell or to produce the subject new variety in Turkey the requirements set by the Law no. 5553 (in effect as from 31.10.2006 replacing former Law no. 308 for registration, control and certification of seedlings) should be met by the right owner. The purpose of this law is to upgrade productivity and quality in plant production, to ensure quality assurance for seedlings, to make arrangements for the production and trade of seedlings, and to implement all necessary arrangements for restructuring and developing seed sector. The registration proceedings are run to describe the characteristics of the seedlings and certification proceedings are carried out to determine whether the characteristics described during registration are effectively and duly realized. 

After the online application, within 10 days it is required to submit a document that proves the relation between the applicant and the domain name to be registered.

Such a document may be in form of an extract obtained from the Trade Registry of the country the applicant company is established.

Nevertheless it is no more possible to obtain domain name registration for "com.tr", "info.tr", "biz.tr" on basis of Trademark Registration Certificates obtained in foreign countries, but only on the basis of Turkish trademark applications or registration certificates. Also in cases where the domain name is identical with company name, the submission of company register extract shall also be accompanied with documents evidencing its business interest and relationship with a company residing in Turkey.

A Power of Attorney, in case a representative is instructed should also be submitted for recordal purposes.

Turkey has the following legislation concerning copyright protection:

• the Law on Intellectual and Artistic Works (Copyright Act) No. 5,846 of 5 December 1951, as amended by Law No. 5,101 on 3 December 2004;
• the Law on the Evaluation, Classification and Support of Cinema Films; and
• a number of regulations concerning the implementation and enforcement of the above Copyright Acts, including the Regulation No. 26,171 of 17 May 2006 regarding the recording and registration of intellectual and artistic works.

The administrative procedure for copyright formalities is implemented in Turkey by General Directorate of Copyright and Cinematography Department of the Ministry of Culture and Tourism (the ministry). Copyright enforcement, however, is effected in Turkey by the judicial authorities.

Copyright infringement actions are heard in Turkey before specialist courts for intellectual and industrial property rights located in the cities of Istanbul, Ankara and Izmir. In other cities of Turkey, copyright infringement actions are heard by the local civil commercial court or, in the absence of such a court, the local ordinary civil court of first instance acting as specialist courts.

According to article 1B of the Turkish Copyright Act, a work subject to copyright qualifying for protection under the Act: ‘is any kind of intellectual and artistic creation carrying the characteristics of its author and is considered as scientific, literary, musical, fine art (artistic) or cinematographic.’

According to the Turkish Legislation the work enjoying copyright protection shall bear the characteristics and particulars of its author. No particular test is applicable for determining the characteristics or particulars of the author. The Turkish Copyright Act also provides protection for computer software and databases.

According to the general principles in the Turkish Copyright Act, original or creative works shall be subject to copyright protection.

The issue of originality of the work subject to copyright protection is assessed and evaluated on a caseby- case basis in Turkey within the context, and in relation to, the characteristics reflecting the personality of the author. Article 2, paragraph 2, of the Turkish Copyright Act excludes from copyright protection the concepts or principles on which any element of a computer program is based including those on which its interface is based. This is because they are not deemed works that can enjoy copyright protection under the Turkish Copyright Act.

The Turkish Copyright Act includes the doctrines of ‘fair use’ related to copyright and restricts the rights of the copyright-holder for reasons of public policy.

Public policy restrictions in Turkey include:
• use of the work subject to copyright protection as evidence before the court or other authorities in criminal proceedings; and
• reproduction of photographic works subject to copyright protection for judicial reasons.

Public interest restrictions in Turkey include:
• use of officially published law texts, regulations and court decisions;
• reproduction of a public recitation with the aim of providing news or broadcasting; and
• free use of published works for educational purposes provided there is no direct or indirect commercial profit arising from the use.

According to the Turkish Copyright Legislation, quotations may be used provided that they are clearly referenced. The use of the published daily news is a further restriction.
According to the Turkish Copyright Legislation, personal fair use also restricts the copyrights of the author provided that such use is not detrimental to the author’s legitimate rights.

The Turkish Copyright Act defines ‘performing artists’ as any person who interprets, presents, explains, speaks, plays or expresses a work in a variety of manners in an original or novel way, without any prejudice to the moral and economic rights to the owner of the work subject to copyright protection.

According to Turkish Copyright Legislation performing artists have the right to be known as owner of their performances and to prevent them from being altered or impaired in a manner detrimental to their reputation (moral rights). Also, performing artists that interpret a work subject to copyright protection with the authorization of its author have the exclusive right to record their performance and to reproduce, distribute, communicate, rent, lent and to broadcast their recordings (economic rights).

Moral rights are recognized in the articles 14 to 17 of the Turkish Copyright Act and respectively give the copyright-owner the exclusive right to:
• determine whether the work subject to copyright protection shall be disclosed to the public and if so, to decide the timing and the manner of the publication (the right of disclosure);
• decide whether the work subject to copyright protection shall be published in its name, pseudonymously or anonymously;
• prohibit the reduction, insertion and other modification of the work subject to copyright protection as well as of the name of owner of the work without its authorization (the right of integrity);
• request access to the original copy of work subject to copyright protection temporarily from subsequent rights-holders.

 Furthermore, according to Turkish Copyright Act the right of disclosure and the right of integrity of the work subject to copyright protection are inalienable in the sense that they cannot be waived by a contract if the manner of disclosure and the manner of alteration harms the reputation of the owner or the nature and characteristics of the work.

Regulation No. 26,171 of 17 May 2006 in Turkey, regarding the recording and registration of intellectual and artistic works subject to copyright protection, provides a system for registration of all kinds of artistic work, which is administered by the ministry and the General Directorate of Copyright and Cinematography in Ankara. The registration of these rights would enable the recordal of the license to use and assign the work subject to copyright protection before the Ministry.

 The recording or registration of copyright based on declarations does not have a constitutive effect for the establishment of copyright in Turkey; it only serves as evidence of the existence of the copyright. It is therefore further mentioned in article 13 that: ‘The ministry shall not carry any responsibility for such recording or registrations.’

On the other hand, according to Law No. 5,224 on the Support of Cinema Films through Evaluation and Classification in Turkey, cinema works subject to copyright protection which are produced within Turkey or subject to importation have to be evaluated and classified by the Council of Evaluation and Classification within the Ministry. They are recorded and registered and granted a certificate of operation prior to their wholesale, distribution and display to the public.

Authors of cinematographic and musical works and movie and record producers have to record their works subject to copyright protection independently from the establishment of the right itself. In other words, the purpose of copyright registration is solely to evidence their authorship and to follow up any authorizations the authors may have given in respect of the use of the economic rights of their works. Mandatory registration in Turkey in this instance is not concerned with preventing copyright infringement.

According to the final paragraph of article 13 of the Turkish Copyright Act: ‘All fees regarding the registration or recording procedures in this law shall be determined by the ministry. All procedures and guidelines for the registration and recording of such rights, determination of fees and other issues are to be determined in the implementing Regulation to be issued by the ministry.’

In Turkey the ministry issued an implementing Regulation on 14 November 2002 on the basis of the former article 13, which only provided a mandatory registration system for cinematographic and musical works subject to copyright protection. Until recently, the ministry had not issued an implementing Regulation further to the last modification of article 13 establishing the dual system.

The Turkish ministry has recently issued and put into force implementing Regulation No. 26,171 based on the new article 13 of the Turkish Copyright Act of 17 May 2005, providing the procedures and guidelines for the recording or registration of all works subject to copyright protection.

According to this Turkish Regulation, the authors of cinematographic and musical works subject to copyright protection, for which recording or registration is mandatory, have to file an application form and the following documents with the offices of the Turkish ministry in the relevant city:
• a ‘producer document’, which is obtainable from the Turkish ministry upon evidence of the applicant’s commercial activity;
• an undertaking indicating the ownership of the work in accordance with the Turkish Copyright Act which acknowledges civil and criminal responsibilities where evidenced otherwise;
• a certificate obtained from the Council of Evaluation of Classification of Cinema Films in Turkey in respect of cinematographic works subject to copyright protection;
• the scenario and dialogue script and the genuine music notes and lyrics for cinematographic works, and the genuine music notes and lyrics for musical works subject to copyright protection;
• the advertising poster or board for cinematographic works subject to copyright protection, and the cover and sample of all promotional materials, if any, for musical works subject to copyright protection;
• a digital recording of the work (DVD, VCD or audio CD); and
• the receipt showing payment of the official registration or recording fees.

In relation to the voluntary recording or registration of works subject to copyright protection, the authors, in addition to the application form and the documents mentioned under the first, second and fourth points above, have to submit:
• the source codes for computer programs in the specified form (the specified form varies on the basis of the characteristics of the computer programs);
• the data recordings for databases (requirements vary);
• two digital recordings for all other works; and
• a digital recording with detailed description for artistic works.

According to the information obtained from the Turkish ministry, such applications have been filed with and accepted by the head offices of the ministry in Ankara since February 2007 and are currently being prosecuted within two to three weeks as of their filing.

As the registration of a copyrighted work does not have any constitutive effect in Turkey, failure to register has no negative effect on copyright ownership.

Cinematographic or musical works subject to copyright protection for which recording or registration is mandatory will not be granted a certificate of operation for their wholesale, distribution and display to the public according to Turkish copyright law.

Article 18, paragraph 2, as amended by Law No. 4,630 provides that: ‘The rights originating from the works created by civil servants, employees and workers in the course of their duties or work shall be used by their employers or by those having appointed them unless otherwise agreed by special contract between them or otherwise construed from the nature or particularity of the work or employment.’

According to general opinion in Turkey, whereas the employer is entitled to use the economic rights arising under copyright, the employee who has created the work subject to copyright protection continues to be the owner of the moral rights arising under copyright including the right to claim that his or her name appears on the artwork, the right of disclosure and publication, and the right to prevent unauthorized alteration to the work, etc.

Although ownership of economic rights arising under copyright by the employer was clearly mentioned in article 8 of the old version of the Turkish Copyright Act No. 5,846, ownership of the economic rights arising under copyright is not mentioned as such in amended article 18, which instead states that ‘all rights shall be used by the employers and by those having appointed them’. In our opinion, however, the absence of ‘economic rights’ in amended article 18 should not be interpreted to mean that the use of both the moral and economic rights rest with the employer owing to the general acceptance of the nontransferable character of the moral rights.

The agreements and the disposal of the economic rights of the copyrighted work in Turkey should be in writing and the type of these rights shall be expressly mentioned in writing in order to be valid. Therefore, the simple of act of hiring an independent contractor for the creation of an artistic work is not sufficient for the automatic transfer of the rights to the copyrighted work. The creator shall clearly mention which of the economic rights arising under copyright protection have been transferred to the hiring party.

On the other hand, although economic rights in relation to work not yet created but subject to copyright shall not be transferred, thus any agreement in this respect is null, an undertaking/commitment with respect to the disposal formalities is valid even though the work has not yet been created.

According to article 9 of the Turkish Copyright Act, ‘if a work created by more than one person can be divided in parts, each person shall be deemed the author of the part created by him’. Each person may request that others cooperate in their exercise of moral or economic rights on the whole work subject to copyright protection and permission can be granted by the court where any person refuses to cooperate.

According to article 10 of the Turkish Copyright Act, ‘if a work created by the contributions of more than one person constitutes an indivisible whole, the community of authors shall be deemed the author’. Since this type of work consists of a work created with the inseparable efforts and collaborations of a group of persons, moral and economic rights arising under copyright protection of the work of collaboration are to be used by the community of authors (the rights on cinematographic works are reserved).

The community of authors creating the work subject to copyright protection is governed by the provisions of the Turkish Code of Obligations regarding ordinary partnership.

In Turkey, the author or his or her successors can transfer or assign in part or in whole the legally recognized economic rights of the work subject to copyright protection, whether limited or unlimited in time, place or content, and whether or not for monetary consideration. Economic rights in relation to work not yet created but subject to copyright protection shall not be transferred.

Although not expressly indicated in the Turkish Copyright Act, moral rights arising under copyright protection are absolutely non-transferable and therefore any transfer of such rights is to be considered as invalid in accordance with the provisions of the Turkish Code of Obligations.

In Turkey, it is possible for the author or his or her successors to transfer or assign the right to dispose of the economic rights arising under copyright protection to a third party, in other words to license. A license can be non-exclusive or exclusive. According to Turkish Copyright Act , unless otherwise established either by law or by contract, all licenses are deemed non-exclusive. Non-exclusive licenses are governed by the provisions on leases whereby exclusive licenses are ruled by the provision on usufruct. 

The obligations of the performing rights societies can mainly be separated under three main headings as:
• the administration of copyrights;
• to behave equitably while administering the copyrights;
• to provide information to the Turkish ministry.

Although the Turkish Copyright Act does not explicitly mention that performing right societies are authorized with the administration of licenses, one may say that this duty surely falls under the administration of rights obligations, which bears a very wide scope (including the preparation and enforcement of collective and solitary agreements, following the rights, appealing to courts, etc). To manage the licenses, performing rights societies must be authorized with a separate power of attorney prepared and signed by the member, who is the rights-owner.

The transfer of copyrights in Turkey can be terminated by reverting the right arising under copyright protection to the author and by the author’s renunciation of this right.

According to Turkish Copyright Act, the rights-holder may renounce the transfer of rights arising under copyright protection and terminate the agreement when the transferee does not benefit from, and does not use, the economic rights as it should, within a specified or reasonable period, thereby not fulfilling the interests of the rights-holder.

 If the author or his or her heirs have transferred an economic right arising under copyright protection for a specific purpose or for a specified period, the right reverts to the author when the purpose has been attained or the period has expired. This provision does not apply in the event of the bankruptcy or death of the transferee unless the right arising under copyright protection is to be personally exercised by him or her.

Moreover, the author of the copyrighted work or his or her heirs may renounce the economic rights by an official deed provided that there is no prejudice to previous obligations.

According to the Turkish Regulations, the authorization to assign and use the economic rights arising under copyright protection can be registered before the Turkish ministry upon request. The following documents must be provided:
• an undertaking indicating the authorization to assign and use the economic rights arising under copyright protection, and acknowledging the civil and criminal responsibilities where evidenced otherwise;
• an identification such as an identity card for individuals or a commercial registry extract for legal persons;
• a signature circular of the person or persons who represent the entity;
• a digital recording of the work (DVD, VCD or audio CD); and
• the receipt showing payment of the official registration or recording fees.

Additionally, the documents evidencing transfers and other transactions on cinematographic works subject to copyright protection can be requested and duly recorded before the Turkish ministry for the latter to grant authorization of operation in accordance with Law No. 5,224 (see question 18).

According to Turkish Copyright Legislation -copyright protection runs for the lifetime of the author and for 70 years after his or her death If the work subject to copyright protection  is created by joint authors, the 70-year period will begin from the death of the last surviving author.

 The protection period for works subject to copyright protection which are made public for the first time following the death of the author is 70 years after the death of the author. This period will commence on the first day of the year following the author’s death.

According to Turkish Copyright Legislation if the copyright is owned by a legal entity, the term of protection is 70 years from the date on which the work was made public.

According to Turkish Copyright Legislation if the work protected under copyright is a database, the protection period is 15 years from the date when the work was made public. If substantial amendments are made to the database causing substantial change in the content and investment, the amended version will be protected as a new database.

According to Turkish copyright legislation the protection period starts from the date on which the work was made public. A protection term that is deemed to start on the date which the work is made public is counted from the first day of the year following the year during which the work has first been made public. 

According to Turkish Copyright Legislation the infringement of economic and moral rights arising under copyright protection will constitute a copyright infringement.

The infringement of economic rights arising under copyright protection includes adapting, reproducing, distributing, performing, broadcasting or otherwise disposing of the work without the consent of the copyright holder.

Infringement of moral rights arising under copyright protection includes:
• unauthorized communication of the work subject to copyright protection to the public;
• failure to put the author’s name on the work subject to copyright protection;
• putting a name other than the author’s name on the work subject to copyright protection; and
• modifying the work subject to copyright protection without the consent of the author.

Against a copyright infringement in Turkey it is possible to:
• institute civil action for stopping the copyright infringement;
• claim material and moral damages; and
• request the confiscation and destruction of the infringing or pirated goods.

It is possible to request injunctive measures within the scope of the civil proceedings by evidencing the danger of (imminent) copyright infringement that may cause substantial damage. The court will need to be convinced that there is a high probability of such an infringement. The courts are conservative and have the discretion to refuse claims for injunctive measures and they may request the deposit of a guarantee for ordering such injunctions.

 The injunctive measures may be requested in Turkey either before or within the context of the civil action instituted on the basis of copyright infringement. Should the injunctive measures related to copyright be requested before the institution of the civil action and the court reaches a favorable decision, the main civil action shall be instituted within 10 days of the date of the order for the injunctive measures. Otherwise, the order for injunctive measures will remain without effect.

It is also possible according to Turkish Copyright Legalisation to institute a specific non-adversarial action for the determination of the facts infringing copyright. This can be an ex parte action for the determination of the infringement. If affirmative, it will serve as evidence within the context of the main civil or criminal actions. An interlocutory injunction related to copyright may also be requested within the context of the action for determination of evidence.

Copyright infringement is also a criminal offence in Turkey and it is possible to request the seizure of infringing products. Criminal proceedings reated to copyright can be brought against the infringer by filing a complaint with the public prosecutor.

Where a complaint is favorably received, the public prosecutor may order the police to seize the goods infringing copyright. Criminal proceedings, initiated by the public prosecutor, can be brought if the copyright infringement is determined by the seizure of the goods. The infringing goods seized by the police will be kept in judicial custody until the end of the criminal proceedings.

According to Turkish Legislation local security forces can ex officio initiate proceedings against and prosecute those involved in the selling of copies of musical and cinematographic works subject to copyright protection and non-periodical publications on the street or in similar open areas without banderoles (stickers denoting that copies are legitimate); there is no requirement for the copyright holder to bring the proceedings or complaint. The person involved in such an offence is convicted through criminal proceedings.

In Turkey it is possible to request customs to suspend the release of the goods infringing copyright. During routine clearance, the Turkish customs authorities, in cases of clear indications of copyright infringement, may suspend the release of the goods. Likewise, the copyright-holder may also put Turkish customs on alert for a period of 30 days by filing an application for a possible copyright infringement for incoming and outgoing goods.

According to Turkish Copyright Legislation civil claims related to copyright are subject to a one-year and 10-year limitation period. The one-year limitation period runs from the date when the copyright infringement becomes known to the copyright-holder. Should the copyright holder become aware of the act of copyright infringement after the one-year period, he or she may still ask for compensation within a 10-year period. Where the infringing act also constitutes a criminal offence (which has a longer limitation period) the longer period will be the valid period for the purposes of the civil proceedings.

The limitation period for filing a complaint for the criminal proceeding related to copyright expires within six months of learning of the infringing act.

Turkey is a party to the following international conventions related to copyright:
• the Berne Convention, of which Turkey is a signatory of the Paris text of 1971;
• Trade-Related Aspects of Intellectual Property Rights (TRIPS);
• the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, adopted at Rome;
• the WIPO Performances and Phonograms Treaty – WPPT; and
• the WIPO Copyright Treaty – WCT.

Turkey is not a party to the Universal Copyright Convention.

In Turkey, the principle of national treatment is applied on the basis of the provisions of the Berne Convention. Article 88, paragraph 1(3), of the Turkish Copyright Act reads: ‘This Law is applicable to all works of foreigners which have not been communicated to the public or which have been communicated to the public for the first time outside Turkey with the proviso that there are appropriate provisions to this effect in an international convention of which Turkey is signatory.’

Moreover, being a party to TRIPS, Turkey provides copyright protection to software and databases and has extended the protection to performers’ works as well as to producers of recording and broadcasting organizations.