Recent Developments
The Ministry of Environment, Urbanization and Climate Change (“Ministry“) published the Regulation Amending the Geographic Data License Regulation (“License Regulation“) and the Regulation Amending the Geographic Data Permits Regulation (“Permit Regulation“) (together the “Amendments“) in the Official Gazette no. 32149 dated 31 March 2023. The Amendments make significant changes in the regulations. In addition, the License Regulation introduces three groups of license types and differentiated obligations accordingly, while the Permit Regulation sets out provisions on data disclosure. The License Regulation is available here (in Turkish), and the Permit Regulation is available here (in Turkish).
What’s new?
The main amendments to the Regulation on Geographic Data License and the Regulation on Geographic Data Permit are as follows:
I. Amendments to the Regulation on Geographical Data License
- Scope: The License Regulation indicates that the scope covers both domestic and foreign legal entities. Considering that the existing regulations stipulate separate license and permit fees for both domestic and foreign legal entities in the first place, this change only aims to provide clarity on the ongoing practice.
- License types: The License Regulation introduces different license types, as “Group A, B and C”. The license types are defined as follows:
- Group A license: License granted to domestic or foreign real and legal persons in cases of collection and/or production, disclosure and sale of data, where the parties enter into a license agreement
- Group B license: License granted to domestic and foreign real and legal persons in cases of data collection, where the parties enter into a license agreement
- Group C license: License granted for activities related to data mining and/or generating new data by using existing data, where the parties enter into a license protocol together with a license agreement
- The obligations of license holders: The License Regulation expands the obligations for license holders. Accordingly;
- The data and data information related to the activities specified in the license agreement must be registered into the electronic infrastructure of the Ministry in the specified periods.
- The licensed entity must ensure the timeliness, accuracy, security and confidentiality of the data.
- The licensed entity must submit the geographical data to the National Geographical Information Platform (tr. “UCBP“) within the license period.
In addition, the License Regulation introduces new requirements based on the types of license. In this vein, the following differentiated requirements are set out:
- Group A and Group B license holders must sign the license agreement prepared by the Ministry.
- Group C license holders must sign the license agreement and license protocol prepared by the Ministry.
- Group A license holders must notify the relevant governorship and the Ministry within 15 days regarding the changes in the contact information, vehicles and personnel, if any.
- Geographic Information System (“GIS”) specialist/operator processes: Under the legislation, license holders must employ a GIS specialist or operator. The Amendments introduce a number of exemptions regarding the employment of GIS specialists:
- Foreign Group A license holders are granted a partial exemption where they can employ an employee who graduated from the field of geographic information systems or received training in such field, instead of a GIS specialist.
- However, a similar exemption is not foreseen for Turkish Group A license holders. Accordingly, Turkish entities operating at the national level must employ at least one employee with a GIS specialist certificate issued by the Vocational Qualifications Authority. Meanwhile, Turkish entities operating at the metropolitan and/or provincial level must employ at least one employee with GIS specialist or GIS operator certificate.
- Similarly, Turkish and foreign Group C license holders can employ an employee who graduated from the field of geographic information systems or received training in such field, instead of a GIS specialist.
- No exemption is foreseen for Group B license holders; accordingly, Group B license holders must employ a GIS specialist or operator.
Moreover, the License Regulation indicates that the requirement to disclose documentation attesting the employment of the foregoing employees are not necessary for the initial application.
The License Regulation states that the provisions on employment of foregoing employees during Group A and B license applications will not be effective until 1 January 2025. However, the License Regulation further stipulates that real and legal persons that do not employ GIS specialists and GIS operators by this date are obliged to have at least one of their personnel receive certain trainings to be provided by the Ministry during the license application or within 30 days following the issuance of the license.
- Data mining, new data generation and revenue share: The License Regulation defines the term “data mining” and regulates the procedures and principles regarding data mining and new data generation. Accordingly, the data mining process must be carried out together with the Ministry; the costs are to be bared by the license holder; the intellectual property rights of the final products will be owned by the Ministry; and the license holder can use the produced data for a limited period. In addition, the License Regulation also sets out the procedures and principles regarding the revenue share further to the data mining and generation of new data.
- Audits: The Ministry is authorized to conduct audits upon a complaint or ex officio, and this authority can be delegated to the Provincial Directorates of Environment, Urbanization and Climate Change. The Ministry must be provided with access to all systems related to license activities during audits.
- Penalties: The License Regulation provides clarity on the penalties for non-compliance with the license obligation. Within the scope of Article 13/A of the Geographic Data License Regulation on penalties, in the event of a license revocation, the license holder will be given 10 days to apply for a license; operations of those who do not apply will be suspended and an administrative fine of 5 times the permit fee will be imposed.
- License fee: The fees determined by the Ministry will be published in the Ministry Revolving Fund Unit Price List every year.
- Geographic data license themes classification table: The annex of the License Regulation classifies the data themes on a sectoral basis to provide guidance especially during the license application process and technical issues. Within the scope of the classification, data themes, data layers and data to be shared with the National Geographic Information System have been determined specifically for each sector, including banking, e-commerce and telecommunication.
II. Amendments to the Regulation on Geographical Data Permits
- Scope: In the same vein as the License Regulation, the Permit Regulation indicates that the scope covers both domestic and foreign legal entities. Considering that the existing regulations stipulate separate license fees for both domestic and foreign legal entities in the first place, the changes only aim to provide clarity on the ongoing practice.
- Activities carried out for public institutions and legal entities: The Permit Regulation indicates that entities can obtain permits without being subject to the permit fee within the scope of their activities for the benefit of public institutions and legal entities. However, in case the entities use and share the data for commercial purposes or in their own operations, they become subject to the permit fee.
- Data disclosure: The Permit Regulation extends the scope of the requirements on disclosure of data to the UCBP, as below:
- Two reports must be submitted to UCBP regarding the permit operations, which includes the recipients of data and means and time of data disclosure with other parties, during the half of the permit period and 15 days before the termination of the permit.
- Data must be continued to be disclosed to the UCBP after the termination of the permit, and data must be handed over to the Ministry if data cannot be disclosed to the UCBP.
- The Ministry may share these data in line with the approval of the real and legal persons, with or without charge. In cases of natural disasters and extraordinary circumstances, the Ministry may use and share these data without the consent of the related parties.
- Penalties: Similar to the License Regulation, the Permit Regulation clarifies the penalties. Under Article 12/A of the Regulation on Geographic Data Permit, in the event of absence of permit, the entity will be given 10 days to apply for a permit; operations of those who do not apply will be suspended, and an administrative fine of 5 times the permit fee will be imposed.
Conclusion
The Amendments introduce new regulations, extend the existing ones, and clarify the administrative penalties to be imposed in case of failure to comply with the permit and license obligations. The geographical data license concerns a wide range of sectors, including banking, e-commerce and telecommunication. These parties should closely follow the amendments introduced, the guidance of the Ministry, and their interpretation in practice.
