Under Law 5846 on Intellectual and Artistic Works (the Copyright Act), the following actions constitute copyright infringement unless the rights holders has provided prior consent:
- reproducing copyrighted work;
- making copyrighted work available to the public;
- altering copyrighted work;
- distributing copyrighted work; or
- communicating copyrighted work to the public by devices that enable the transmission of signs, sounds or images.
With a substantial increase in the number of copyrighted works shared online in today's digital world, takedown requests have gained increased importance in combating online copyright violations.
Additional Article 4 of the Copyright Act, which sets out the current takedown request system, was introduced via the 21 February 2001 amendment to the act. Under Additional Article 4, when online infringement is detected, copyright holders must:
- contact the content provider to request the removal of the infringing content within three days; and
- ask the public prosecutor to issue an order against the relevant service provider to block the content provider's internet access if the removal request has not been satisfied within this three-day period.
If the infringement is remedied, access to the content provider will be reinstated. In cases of failure to remedy the infringement through the above measures, the rights holder can file a criminal action against the content provider.
The three-day period for content providers to take action can be considered a long time with regard to digital platforms, where the dissemination of information has become extremely fast. In addition, finding the contact details of content providers can be challenging in the context of a 'notice and takedown' system, as the liability of content providers applies only after notification. As content providers may not always be clearly indicated on infringing websites, right holders may face difficulty serving notice of copyright infringement.
The Draft Copyright Act, which aims to substantially change the Copyright Act, has been in preparation for some time. The draft, which was made open to public comment by the Ministry of Culture and Tourism, includes regulations on takedown requests, among other issues.
According to the draft, rights holders will not be required to follow the current procedure, but will instead be able to request that the public prosecutor block access to infringing content in urgent cases.
After a request has been filed within the frame of this proposal, the public prosecutor will be authorised to render a decision to block the infringing content until the infringement has been remedied. If the content provider takes no action and maintains its illegal activities despite these measures, access to the entire website containing the infringing content can be blocked. Decisions rendered by the public prosecutor will be subject to the Criminal Court's approval. In the absence of such approval within 24 hours, the public prosecutor's decision will be automatically overturned.
The Draft Copyright Act also includes provisions concerning peer-to-peer (P2P) platforms. With modern P2P networks, sharing is faster when more users download a file. Through such highly sophisticated platforms, data is not transferred from a central point to users as a whole, but rather split and transferred in smaller parts between all users involved. Therefore, the more users that share and benefit from infringing content, the quicker such data transfers take place.
The draft allows collective societies to mark works protected by copyright and keep track of whether online infringement of these works occurs. Once a user of a P2P platform is found to have infringed copyright using this method, either the ministry or institutions authorised thereby will send warnings to users. Unless the infringement is remedied upon receipt of two notifications, the internet speed of such users will be slowed down for up to six months.
The draft's preamble states that the new regulation regarding P2P networks aims to stop infringements without any judicial intervention and raise awareness of copyright among internet users in the long run, rather than prioritising penalisation.
The Draft Copyright Act aims to facilitate a more effective enforcement procedure for rights holders. This should allow them to directly contact the public prosecutor instead of having to undertake the existing notification procedures (ie, the notice and takedown principle) that must be followed with regard to content providers.
The measures foreseen for P2P platforms may also play a critical role in a rather challenging environment for copyright holders and provide deterrent protection against infringing parties if their internet protocol addresses can be properly identified.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.