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Copyrights in Turkish Law: Reflections in the Digital Era


In the current digital age, characterized by the widespread presence of social media platforms and video streaming channels, users have evolved from passive consumers of content to active participants. Users now engage in various activities, such as sharing their intellectual creations, distributing the work of others, and even creating and circulating their own content that incorporates elements from someone else's work which is called adapted work.


This shift in user behavior has brought about substantial consequences within the domain of copyright. In this ever-evolving landscape, you might stumble upon someone streaming a copyrighted movie or an artist crafting a masterpiece inspired by a renowned musical composition. While these actions may originate from genuine inspiration and creativity, they may infringe third parties' copyrights. Additionally, the accessibility to copyrighted works and the ease of sharing them on digital platforms in today's digital era have further compounded these challenges.


As a result, these actions have the potential to infringe upon copyrighted works. For instance, streaming copyrighted movies or creating and sharing adapted works such as art reproductions or cinematic adaptations of literary works can lead to legal consequences, as they often necessitate the consent of the original authors. Understanding these situations is a valuable step for both creators and users of others' work to appreciate the importance of intellectual property rights and their protection.


In Turkey, the Law No. 5846 on Intellectual and Artistic Works ("Law No. 5846") defines the term "work" to encompass various intellectual and artistic creations, including, but not limited to, dances, written choreographic works, music, graphic works, and films. This law also governs the consequences of creating intellectual and artistic works. According to Law No. 5846, the author of a work is the person who creates the work. Upon the creation of the work, the author automatically becomes the exclusive owner of both its material and moral rights. Notably, registration is not a prerequisite, and these rights are inherently vested in the author. Furthermore, it mandates that anyone seeking to use the material rights associated with the work must obtain the author's consent.


According to Law No. 5846, material rights include the adaptation, reproduction, distribution, performance and the act of presenting a work to the public through mediums capable of transmitting signs, sounds, and images.Among these, the right to communicate a work to the public via platforms facilitating such transmissions holds exceptional significance, particularly in the age of social media where content sharing has the potential to infringe upon this very right.


This right may occur through broadcasting by entities that employ wire or wireless means, such as radio, television, satellite, or cable. Furthermore, it extends to devices that facilitate the transmission of signs, sounds, and images, even in the digital realm. Additionally, the author holds the power to permit or deny the sale, distribution, or supply of the work or its reproductions to the public. Hence, without obtaining the proper consent, all online publications carry the potential to infringe upon the author's right to disclose their work to the public.


In the event of copyright infringement, there exists a range of measures to protect authors' rights. These measures encompass actions like blocking access to the content, requesting the removal of infringing material, filing a formal complaint with the Public Prosecutor's Office, or even pursuing a civil lawsuit. Especially, for online copyright violations, the Additional Article 4 of Law No. 5846 regulates a vital mechanism known as the "warn and remove" process. This system enjoys widespread adoption among rights owners as a potent tool for addressing online infringements swiftly and efficiently. To follow the “warn and remove” procedure, initially, right owners must send a notice to the content provider, requesting the infringing material’s removal within three days. In the realm of social media, where millions of users generate an abundance of content, the "warn and remove" system is the most widely adopted approach. Social media and video streaming platforms introduce specifically developed mechanisms to receive and evaluate these notifications. This allows for copyright violation warnings to be sent directly to the hosting provider. This swift and straightforward method on platforms where a substantial amount of content is subject to copyright, such issues are promptly addressed through the platform's own copyright notification system.


On the contrary, there are exemptions that do not necessitate the author's consent for the use of their work, with the most widely recognized being "fair use." This principle entails an assessment that considers factors like the purpose and nature of the alleged infringement, the type of copyrighted material in question, the extent and duration of its utilization, and the effect of this usage on the work's value in both current and future markets.


In some cases, video streaming and social media platforms conduct their own assessments related to fair use. For example, they may permit the creation of video edits that critique a short promotional film, striking a balance between copyright protection and freedom of expression. Similarly, editing a video using relevant segments from a speech by a public figure might be deemed fair use, especially when the primary aim is criticism. Additionally, combining short clips from two separate movies can fall under the fair use category, as long as the creator's intent and the impact of their work on the value and market of the original material are carefully considered.


Although Law No. 5846 in Turkey doesn't explicitly mention the "fair use" exemption, discussions surrounding the "fair use doctrine" have emerged in the Turkish Supreme Court. The Supreme Court has explored the fair use criteria in cases and drawn parallels with decisions from the Court of Justice of the European Union (“CJEU”). The CJEU has applied criteria such as "whether the provision of a service affects customer choices" and "whether an additional benefit is obtained from the action."


It has been proposed that these criteria should be assessed in each specific case. Each case possesses its unique characteristics and nuances. Therefore, pinpointing the additional benefits arising from the use of copyrighted work is no straightforward task. However, as precedent decisions accumulate, it is expected that making such predictions will become more feasible.


Furthermore, recent legal rulings underscore the increasing necessity to revise copyright laws. The rapid progress of digital technology has fueled conversations about exceptions and the fair use doctrine within copyright law. Adapting to this evolving landscape is imperative for effectively navigating the complexities of intellectual property in the modern world.



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