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JURIST's Turkey Correspondent is Virginia Brown Keyder, Lecturer in Law, Bilgi University, Istanbul. She is also a legal consultant for Mehmet Gun & Co.
[Istanbul; Special to JURIST] Services reporting on new statutes and judgments in far-flung jurisdictions of the world are mushrooming. As international legal sophistication grows in tandem, however, it is fast becoming clear that verbatim renditions of such developments rarely tell the whole story.

In countries where foreign legal systems have been received in living memory (such as Turkey which in the 1920s received the Swiss Civil Code and Code of Obligations, the Italian Penal Code, the German Code of Criminal Procedure and in 1956 the German Commercial Code) or more recently, where laws have been harmonized pursuant to "globalizing" international agreements (in 1995, for example, Turkish intellectual property law was harmonized in its entirety to that of the EU), old customs, perspectives and power structures often coexist with new laws, sometimes peacefully, sometimes not. What might appear to the untrained eye to be a perfectly routine legal development may in fact constitute an important step when examined in a historical perspective. It may indicate a shift of paradigm or evince a fundamental conflict which would be imperceptible without the benefit of context.

Take a recent decision of the Kadikoy (Istanbul) Commercial Court, for example. Heralded as the first internet decision (it may or may not be - Turkish court decisions below the appeal level are difficult to obtain unless you know one of the lawyers involved - they are not published and lawyers are reluctant to share these treasures even with each other), it in fact represents little on its face that is noteworthy.

The plaintiff, the Turkish State Printing Office, is the body responsible for publishing the Official Gazette , a daily printed record legislative acts and notices. The defendant is a private company engaged in making the Official Gazette available on-line to subscribers at no charge . The plaintiff claimed that the defendant, by disseminating the contents of the Official Gazette without authority or license, violated property rights provided for in the Civil Code (Art. 618). The plaintiff further claimed rights to the contents of the Official Gazette based on a law which provides that the Printing Office is responsible for disseminating the Official Gazette. The Court rejected the first claim on the grounds that the relevant law was the Copyright Law, as amended in 1995, rather than the Civil Code. The Court found however that the plaintiff had no protectable copyright in the material, based on Article 31 of the Copyright Law which provides that once officially published, laws, by-laws, regulations, etc. may be reproduced in any manner. Given that the defendant's use was lawful, Art. 84 of the Copyright Law, (which states that anyone who fixes a sign, image or sound on a device enabling transmission or who reproduces or diffuses it rightfully for commercial purposes, may prevent a third party from producing or diffusing the same [unofficial translation]) was also found supportive of the defendants position.

The Court held that although the contents of the Official Gazette lacked sufficient originality for copyright protection, once collected, arranged, and entered into electronic form, the result could constitute a database. Databases are protectible under Article 6(11) of the amended Copyright Law, even where no protection extends to the data and material contained therein. The Court found that the fact that the defendant actually retyped the contents of the print version into the computer and rearranged them on the screen to appear with advertisements reinforced his defence against the plaintiff's claim.

The Court also rejected the claim that the plaintiff's statutory duty to publish the Official Gazette gave it a monopoly on publication of its contents. The court went on to say that as the state is not a commercial entity, it cannot claim unfair competition pursuant to Turkey's Commercial Code. In a standard one-page delivery (Turkish decisions, like those of many of its European Civil Law counterparts are rarely lengthy, eschewing detailed treatments of the facts characteristic of Common Law courts), it dismissed the state's claim to enjoin the publication of the on-line Official Gazette.

From a copyright perspective, the decision is unexceptional. Relying on the findings of an "expert's report" (a curious constant in Turkish judgments which never fails to leave the unintiated asking why the judge can't decide on his own, the most obvious answer being he is too overworked to do so) the court identifies the relevant law and decides accordingly (which Civil Law judges may do proprio moto).

"History is full of documents that may support all of your allegations" - Paul Valery

Until very recently (e.g. 1992 changes to the Criminal Code on suspects' rights and 1995 harmonization measures in favor of IP rights), discourse on law in Turkey was populated almost exclusively with the concepts of hierarchy, power, punishment and pardon - in a nutshell, positivism's last stand. The Turkish state was, and still is, based on the French model - but it is the French state without the French Revolution (Common Law inhabitants be warned that the "the state" is not synonymous with "the government" as we know it, but something more - an entity with its own interests to protect and if its subjects benefit in the process, well that's nice too.) Central to the traditional legal hierarchy (for as some famous person once said, constitutions come and go but the Civil Code is forever) are the codes mentioned above - Civil, Commercial and Penal. Given the slow pace with which the new IP harmonizing measures have penetrated the legal order, from judges to ancien regime lawyers, it is no real surprise that, in this case, lawyers for the state attempted to use the new Copyright Law provisions as the definition section of the Civil Code. What is noteworthy is that they failed.

This is not an isolated case, but the purview of the old order is fading fast. Shortly after Turkey's first industrial design law came into effect in 1995, its effects (clearly in favor of the independent auto spare parts producers) were virtually ignored in a first instance decision which relied on the older Commercial Code provisions instead. Still "good law" in the Common Law sense, it was clear that its range had been narrowed by specific provisions of the new Design Decree. Lack of continuing legal education in Turkey is only part of the picture. The other part is a realization at some level that what is being left behind is more than just old laws or more specifically old views of old laws, but a whole mentality: the mentality of state positivism enshrined in a top-down concept of power is being replaced (albeit more slowly than some would like) by a bottom-up concept of rights.

That being said, it must also be mentioned that an enduring characteristic of Turkish law is a heavy reliance on the concept of punishment - again top-down power over bottom-up rights - in the enforcement of the new laws. Perhaps because civil damages are low, and meaningless in a currency whose value sinks daily (though a recent decision to award a foreign software company civil damages in its own currency, dollars, may start to change this), or perhaps because the very concept of intellectual property is alien to most citizens (just as the Enclosures Acts in England were incomprehensible to those used to exercising age-old rights to common pastures), the reliance on ever-harshening criminal sanctions (Bills are currently before the Parliament which would raise imprisonment for copyright infringement to up to six years) is nevertheless cause for worry. Similarly, cries of censorship have been heard in response to the proposed extension of the "bandroll" system, whereby the state will effectively have to approve the sale of all books, music and films.

This is not the place for a philosophical discussion of Turkish law. Readers interested in an interesting treatment of Turkish legal theory are directed to Dr. Christian Rumpf's "The Importance of Legislative History Materials in the Interpretation of Statutes in Turkey" (Winter, 1994, 19 N.C.J. Int'l Law & Com. Reg. 267) Suffice it to say that Turkish law, reflecting rapid changes in the society and its role in the world, is engaged in a struggle between the old order of state power and its philosophical corollary, positivism, and the rise of private rights, be they human or economic.

It is now a clich to say that globalization and its legal corollary, harmonization, particularly, but not exclusively, with regard to IP law, has reduced the traditional role of the state and weakened the boundaries of sovereignty. While the state and the concept of sovereignty scramble for new roles, which may when the dust settles prove to be more important and beneficial than anything they have done in the past, conflicts will exist and jealousies will play out. These can be seen only through the lens of persistent and contextual examination of legal developments. This is what we hope to do in these columns.

Virginia Brown Keyder
JURIST Turkey Correspondent

Lecturer in Law
Bilgi University
Istanbul, TURKEY

April 6, 2000


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