Trying to keep pace
With its unique position as conduit between Europe and Asia, Turkey looks set to become an ever more vital jurisdiction for IP. It does, however, pose a bit of a conundrum to businesses and IP lawyers. Patent and trademark applications have been on the rise for years, while the economy continues to outperform its developed rivals. This means businesses can see real opportunities in the country, whether it be for pharmaceutical innovation or luxury goods sales.
And yet, there is cause for wariness. In May, the Office of the US Trade Representative (USTR) released its annual Special 301 Report, once again putting Turkey on its piracy and counterfeiting ‘watch list’. The report said: “Turkey should take action on the legislative reforms that are currently pending, and should take steps to provide an effective mechanism to address piracy in the digital environment, including full implementation of the World Intellectual Property Organization (WIPO’s) Internet treaties.
"Additional resources and training are needed to allow for more effective IP rights enforcement efforts, including additional training for judges, especially with respect to piracy over the Internet.”
Being on the watch list is one thing, but there are other good reasons for Turkey to address the issues identifi ed by it. The country is keen to take up membership of the European Union, but to do so, it has to ensure that it meets the entry criteria (and given the current situation in Europe, it seems unlikely the EU will be inclined to be lenient when it comes to these requirements).
The EU has acknowledged that, broadly speaking, IP law is moving in the right direction in Turkey—indeed, the “pending” reforms mentioned in the Special 301 Report hint at the same thing. The real difficulty is in enforcement.
A new draft law was published in January of this year, containing provisions to address some of the key shortcomings in the current patent, utility model, industrial design and trademark statutes. This includes criminal law provisions for certain IP infringements.
Once it is approved by the Turkish Senate, things will no doubt improve. But there are still signifi cant concerns about the ability of Turkish courts to enforce the law effectively, and in the area of copyright piracy, deeper worries about whether the law is adequate.
“THERE ARE SIGNIFICANT CONCERNS ABOUT THE ABILITY OF TURKISH COURTS TO ENFORCE THE LAW EFFECTIVELY, AND IN THE AREA OF COPYRIGHT PIRACY, DEEPER WORRIES ABOUT WHETHER THE LAW IS ADEQUATE.”
The International Intellectual Property Alliance (IIPA), a private sector coalition of US trade associations representing copyrightbased industries, says that while there has been incremental improvement in copyright enforcement in Turkey, there are still significant issues which need to be addressed. “The value of unlicensed soft ware use in Turkey remains high, and rapidly expanding Internet piracy has stunted the growth of the music and other industries in Turkey,” said an IIPA report. “In addition, book piracy continues to hinder the development of the publishing industry, while there have been slight declines in physical optical disc piracy year on year.”
The IIPA laments the difficulty of enforcement of copyright, highlighting “burdensome court processes, long delays in adjudication of cases, and overall lack of IP expertise within the judiciary.” And, like the EU, it highlights the lack of formal ex officio authority to act against infringement of IP rights, and urges Turkey to bring legislation fully in line with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Turkey’s draft Law on Intellectual and Artistic Works is pending.
Causes for optimism
Despite these issues—and getting the various draft statutes on to the books is clearly the most pressing—there are reasons to be optimistic. The Turkish Patent Institute (TPI) is on an upward trajectory. According to the EU, its decisions are faring better in the Turkish courts, while the speed of trademark registrations is improving. And new Examination Guidelines for patents, trademarks and designs promise that international best practice will play a more important role in examinations.
It’s clear that influential actors in Turkey want to bring its IP system up to speed with international requirements. And why wouldn’t they? A trustworthy IP system has benefits that go far beyond efficiency. Increased investment and international trade are the prizes and so, further down the line, might be EU membership.
The Turkish government is bullish about its progress, with EU minister Egemen Bağış recently telling the EU/Turkey IPR working group: “Turkey has achieved substantial progress in the enforcement of IP rights, as demonstrated by the outputs of EU-funded projects carried out in the IP area and statistics submitted to the Commission. This progress, which has also been acknowledged by the Commission in various meetings, indicates Turkey’s commitment to fighting against counterfeiting and piracy.”
However much needs to improve in Turkey as regards the IP statues and enforcement, it would hardly be fair to cast it as some kind of IP backwater. Turkey is a member of the European Patent Convention, the Patent Cooperation Treaty and the Madrid Protocol.
It is working closely with the EU and the Office for Harmonization of the Internal Market to address some of the key issues, while a May meeting of the US and Turkey Economic Partnership Commission discussed IP extensively. Indeed, that commission has established a Copyright Working Group, which may go some way to alleviating the concerns of the USTR.
Given its geographical, economic and strategic importance, it seems clear that Turkey will become an increasingly significant jurisdiction for businesses which rely on IP for their success, whether they be pharmaceutical producers, big brands or copyright holders.
As such, the best strategy is surely to attempt to be part of the discussion about Turkey’s future, to help it get up to speed with international standards and bring it further into the international IP fold. It’s a question of watching this space.
