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Attorney & Counsellor at Law International & European Union Law Uluslararası ve AB Hukuku Uzmanı Intellectual property is a subtle and esoteric area of the law that evolves in response to technological change. Advances in technology particularly affect the operation and effectiveness of copyright law. Changes in technology generate new industries and new methods for reproduction and dissemination of works of authorship, which may present new opportunities for authors, but also create additional challenges. Copyright law has had to respond to those challenges, and computer technology (such as digitization), and communications technology (such as fiber optic cable) have had an enormous impact on the creation, reproduction and dissemination of copyrighted works. The merger of computer and communications technology into an integrated information technology has made the development of the Global-National Information Infrastructure possible which will generate both unprecedented challenges and important opportunities for the copyright marketplace. An information infrastructure already exists, but it is not integrated into a whole. The Global Information Infrastructure (GII) of tomorrow, however, will be much more than separated communications networks; it will integrate them into an advanced high-speed, interactive, broadband, digital communications system. This Infrastructure has a tremendous potential to improve and enhance our lives. It can increase access to a greater amount and variety of information and entertainment resources that can be delivered quickly. For instance, hundreds of channels of "television" programming, thousands of musical recordings, and literally millions of "magazines" and "books" can be made available to homes and businesses across Turkey and around the world. The Global Information Infrastructure can boost the ability of the firms to compete and succeed in the global economy, thereby generating more jobs and spur economic growth. Benefits to authors and consumers might be given by reducing the time between creation and dissemination. It will open additional markets for authors and if they choose to enter those new markets, it will provide a wider variety and greater number of choices for consumers, which should increase competition and reduce prices. Further, even if authors choose not to expose their works to this more risky environment, the risk is not eliminated. Just one unauthorized uploading of a work onto a bulletin board, for instance, could have devastating effects on the market. The full potential of the National Information Infrastructure will not be realized if the education, information and entertainment products protected by intellectual property laws are not protected effectively when disseminated via the National Information Infrastructure. Creators and other owners of intellectual property rights will not be willing to put their interests at risk if appropriate systems are not in place to permit them to set and enforce the terms and conditions under which their works are made available in the national environment. The emergence of integrated information technology is dramatically changing, and will continue to change, how people and businesses deal in and with information and entertainment products and services, and how works are created, reproduced, distributed, adapted, displayed, performed, owned, licensed, managed, presented, organized, sold, accessed, used and stored. This leads, understandably, to a call for adaptation or change of the law. Industrial & Intellectual Property Rights Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. Intellectual property rights are customarily divided into two main areas as follows : A.Copyright and rights related to copyright : The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer or tv programs and films, etc.) are protected by copyright, for a minimum period of 50Êyears after the death of the author. Also protected through copyright and related (sometimes referred to as "neighbouring") rights are the rights of performers (e.g.Êactors, singers and musicians), producers of phonograms (sound recordings) and broadcasting organizations. The main social purpose of protection of copyright and related rights is to encourage and reward creative work. B.Industrial property : Industrial property can usefully be divided into two main areas: 1. One area can be characterized as the protection of distinctive signs, in particular trademarks (which distinguish the goods or services of one undertaking from those of other undertakings) and geographical indications (which identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin). The protection of such distinctive signs aims to stimulate and ensure fair competition and to protect consumers, by enabling them to make informed choices between various goods and services. The protection may last indefinitely, provided the sign in question continues to be distinctive. 2. Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets. The social purpose is to provide protection for the results of investment in the development of new technology, thus giving the incentive and means to finance research and development activities. A functioning intellectual property regime should also facilitate the transfer of technology in the form of foreign direct investment, joint ventures and licensing. The protection is usually given for a finite term (typically 20 years in the case of patents). As the basic social objectives of intellectual property protection are as outlined above, it should also be noted that the exclusive rights given are generally subject to a number of limitations and exceptions, aimed at fine-tuning the balance that has to be found between the legitimate interests of right holders and of users. Industrial & Intellectual Property Rights: "Protection and Enforcement": Individuals and companies involved in trade have to know as much as possible about the conditions of trade. It is therefore fundamentally important that regulations and policies are transparent. Ideas and knowledge are an increasingly important part of trade. Most of the value of new medicines and other high technology products lies in the amount of invention, innovation, research, design and testing involved. Films, music recordings, books, computer software and on-line services are bought and sold because of the information and creativity they contain, not usually because of the plastic, metal or paper used to make them. Many products that used to be traded as low-technology goods or commodities now contain a higher proportion of invention and design in their value (for example brand-named clothing or new varieties of plants.) Creators can be given the right to prevent others from using their inventions, designs or other creations. These rights are known as "intellectual property rights". They take a number of forms. For example books, paintings and films come under copyright; inventions can be patented; brand-names and product logos can be registered as trademarks; and so on. World Intellectual Property Organisation (WIPO) and its role : WIPO was established by a convention of 14ÊJuly 1967, which entered into force in 1970. It has been a specialised agency of the United Nations since 1974, and administers a number of international unions or treaties in the area of intellectual property, such as the Paris and Berne Conventions. WIPO's objectives are to promote intellectual property protection throughout the world, through cooperation among states and, where appropriate, in collaboration with any other international organization. WIPO also aims to ensure administrative cooperation among the intellectual property unions created by the Paris and Berne Conventions and sub-treaties concluded by the members of the Paris Union. The administration of the unions created under the various conventions is centralised through WIPO's secretariat, the "International Bureau". The International Bureau also maintains international registration services in the field of patents, trademarks, industrial designs and appellations of origin. WIPO also undertakes development cooperation for developing countries through advice, training and furnishing of documents. An agreement on cooperation between WIPO and the WTO came into force on 1 January 1996. The agreement provides cooperation in three main areas: Notification of, access to and translation of national laws and regulations, Implementation of procedures for the protection of national emblems, Technical cooperation. Industrial & Intellectual Property Law; "Conventions & Protection" : The second part of the TRIPS agreement looks at different kinds of intellectual property rights and how to protect them. The purpose is to ensure that adequate standards of protection exist in all member countries. Here the starting point is the obligations of the main international agreements of the WIPO that already existed before the WTO was created: The Paris Convention for the Protection of Industrial Property (patents, industrial designs, etc). The Berne Convention for the Protection of Literary and Artistic Works (copyright). Some areas are not covered by these conventions. In some cases, the standards of protection prescribed were thought inadequate. So the TRIPS agreement adds a significant number of new or higher standards. Turkey & EU Customs Union ; "IIPL" : The realization of the Customs Union agreement between Turkey & the EU on the 1st January 1996 will continue to impose significant modifications in Turkey's economic and commercial structure. The reflection of this change is not expected to be restricted only in the economic and commercial fields, but also in the political, social, juridical and administrative spheres. Turkey's future performance, once fully integrated into the EU Single Market through the Customs Union, is of an utmost importance. Therefore, the new Industrial & Intellectual Property law (industrial design, trademark, right of the author, patent, copyright, etc.) came into effect in January 1996. This was the beginning of the integration into the global world economy. International treaties were more a reflection of a global political cooperation and were not really meant to make an appearance in the every day juridical operations. In this sense, Industrial & Intellectual Property law has been changing in this global world. As Nation State enacts its commitments under the pressure of the highly organized global capital, treaties exist in a world where plaintiffs or defendants are much less likely to watch passively as these hard-won provisions go virtually ignored by the lawyers and judges. Legislating certain acts accompanied by a failure to adequately explain such measures to the public not only create hostility but can be self-defeating. Legislation is not the only but an important part of the solution to the problem of the industrial & intellectual property infringement. In regard to the alignment of industrial & intellectual property legislation and the fight against piracy and counterfeiting, some efforts have already been made. Steps should be taken to complete the legislative framework in this field. Implementation and enforcement capacity need to be drastically strengthened and the Turkish Patent Institute needs to be fully independent. Turkey's new laws are important not only because they harmonize with the EU and International norms and commitments, but because without contemporary industrial & intellectual property laws, countries cease to exist on the global world economy. Teknolojik gelişmeler sonucunda, eser sahiplerinin eserlerini üretmesi ve dağıtması için yeni yöntemler ve yeni endüstriler ortaya çıkmaktadır; söz konusu yöntemler yeni fırsatların yanı sıra zorluklar da içermektedir. Telif hakları konusundaki kanunlar ortaya çıkan değişikliklere ayak uydurmak zorunda kalmıştır. Bilgisayar ve iletişim teknolojileri telif haklarına tabi eserlerin üretimi, çoğaltılması ve dağıtılması süreçlerini derinden etkilemiştir. Fikri mülkiyet hakları, genellikle belirli bir süre ile kısıtlı olmak üzere bireylere eserlerinin kullanımı hakkında münhasır haklar vermektedir. Bu haklar, telif hakkı ve sınai mülkiyet hakları olarak iki başlık altında ele alınabilir. Kitap, beste, resim, heykel, bilgisayar veya TV programları ve filmleri gibi edebi ve sanatsal eserler telif haklarına tabidir. Sınai hakların kapsamına ise markalar, coğrafi işaretler ve adil rekabeti sağlayan ve tüketicinin mal ve hizmetler arasında bilgiye dayalı seçimler yapmasını sağlayan belirleyici işaretler girmektedir. Etkin işleyen bir fikri mülkiyet hakkı sistemi, yabancı doğrudan yatırım, ortak girişimler ve lisans anlaşmaları sayesinde teknoloji transferi yapılmasını sağlar. Ayrıca ticaretle uğraşan bireyler ve şirketler, ticaret şartları hakkında mümkün olduğunca çok bilgi sahibi olmak zorundadır. Bu nedenle bu konudaki düzenleme ve politikaların saydam olması çok önemlidir. Dünya Fikri Mülkiyet Örgütü olan WIPO, 1974 yılından beri çeşitli ülkelerle ve uluslararası örgütlerle bir arada çalışarak, dünya çapında fikri mülkiyetin korunmasını sağlamaktadır. WIPO ve Dünya Ticaret Örgütü arasında yapılan bir anlaşma uyarınca ulusal kanunların ve mevzuatın bildirimi ve çevirisi, ulusal amblemlerin korunması için prosedürlerin uygulanması ve teknik konularda işbirliği içinde çalışılması amaçlanmaktadır. Fikri ve sınai mülkiyet hakları mevzuatı, söz konusu hakların ihlali, korsancılık ve sahte üretim gibi konularda savaşım vermenin temelini oluşturmaktadır. Bu konuda bir an önce Türkiye'deki yasal çerçevenin tamamlanması ve uygulama ve yaptırım kapasitelerinin güçlendirilmesi için adımlar atılması şarttır. |