Turkish Constitutional Court Has Annulled Article 81/13 of the Law on Intellectual and Artistic Works
Review of Constitutional Court’s decision on labelling obligations
Orcun Cetinkaya,Sila Ozge Sayli
The maxim “quot crimina, tot poenae” is one of the basic principles of criminal law. However, to ensure that a perpetrator is sentenced in proportion to the actions that constitute a crime, conceptual aggregation or special aggregation rules apply in some cases. With conceptual aggregation, the proportionality between a perpetrator’s intention and the sanctions are ensured. However, in some cases, the results of special aggregation rules may violate proportionality. The Constitutional Court in Turkey recently annulled a special aggregation rule prescribed in Law on Intellectual and Artistic Works (“Law”) on this basis.
In Turkey, infringing the intellectual property rights of a rights owner constitutes a crime. Besides that, there are additional obligations set forth to ensure the protection of intellectual property rights, such as labelling obligations. According to the Law on Intellectual and Artistic Works, reproduced copies of musical and cinematographic works and non-periodical publications must be affixed with a special label, called a banderol for commercial exploitation. Violation of this obligation also constitutes a crime.
Labelling obligations are separate to intellectual property rights. This means that a person can violate labelling obligations without infringing the intellectual property rights of rights owners. In fact, it is possible for rights owners to violate labelling obligations and be the perpetrator of such a crime.
On the other hand, the Law prescribes a special aggregation rule in Article 81/13 for cases where labelling obligations are violated concurrently with intellectual property rights. According to the rule, anyone violating labelling obligations as well as intellectual property rights will be sentenced in accordance with Article 71 which regulates the sanctions regarding the violation of intellectual property rights. However, the reference made to Article 71 caused an inconsistency with sentencing.
İzmir 1st Intellectual and Industrial Property Court applied to the Constitutional Court for the annulment of Article 81/13, indicating the inconsistency. It was claimed that the aggregation rule regulated in Article 81/13 meant solely violating labelling obligations gave rise to heavier penalties than the violation of both labelling rules and the moral and material rights of the rights owners and that this was contrary to the general aggregation principles. The first instance court also stated that the penalty prescribed for violating labelling obligations and the moral and material rights of the owner concurrently was a punitive fine, while the penalty for solely violating labelling obligations was imprisonment. This is contrary to the principle of equality set in the Constitution as persons who committed the same crime would be sentenced differently.
Upon the application of İzmir 1st Intellectual and Industrial Property Court, the Constitutional Court annulled Article 81/13 and the special aggregation rule it regulates. The justification of the Constitutional Court was that the article was contrary to the proportionality principle and Article 2 of the Turkish Constitution, owing to the inconsistency between the crime and the penalty.
The Constitutional Court stated in its decision, which was published in the Official Gazette on 17 July 2020, that because of the reference made in Article 81/13 to Article 71, anyone who violated both banderol obligations and the intellectual property rights of the rights owner may be sentenced with a lower penalty. It was also possible for the penalty to be reduced or omitted by the court in some cases while such actions were not applicable for anyone solely violating banderol obligations. In addition, the Constitutional Court also mentioned that in cases where the rights owners violated their banderol obligations, it was not possible for them to be sentenced as per Article 71, since they cannot violate the rights of their own intellectual property. As a result rights owners would be sentenced more heavily than those with no relation to the artistic work. Rights owners were also unable to benefit from any omission or decrease in sentencing.
As a result of the annulment decision, anyone who now violates banderol obligations and intellectual property rights will be sentenced in accordance with general aggregation rules unless another special aggregation rule is introduced. This means that anyone who violates both labelling obligations and intellectual property rights can now be sentenced according to either Article 81 or Article 71, whichever prescribes a heavier sentence for the act that constitutes a crime, and the possibility of their penalties being omitted or sentences decreased has been removed.