Miran Legal

Attorney

27.09.2022

Copyright Protection On Social Media

Social media is an interactive communication platform where users create content over the Internet, share their daily lives and creative works. Before social media existed, all kinds of publications and works were produced and published unilaterally in traditional methods. While all productions along with social media became interactive, not only artists, but everyone with internet access began to be able to create artworks.     

 

            Nowadays, the Internet fills a large part of our lives. We often encounter a situation where the rights of the owners of works protected under the Law on Intellectual and Artistic Works (LIAW) are also violated through the Internet. Therefore, it is aimed to protect intellectual rights with amendments made taking into account the WIPO conventions on copyright in the LIAW. Products, publications and works created by people can be easily re-shared by others in social media, changes or additions can be made, and even an income can be obtained from them without any permission. In this case, people whose rights have been violated feel the need to resort to various legal means. 

 

            Firstly, the type of the violation must be determined in order to determine the course of action for the protection of peoples' rights. If there really is a copyright violation, measures will be taken in accordance with the Law no.5846 on Intellectual and Artistic Works. If there is not a violation, they will need to look at the provisions on any signs, pictures, audios, or photos that are not considered artworks in the LIAW.

 

            In article 4 of the LIAW, an artwork is described as:  “Works of art, works which have aesthetic value, oil paintings and all sorts of watercolor paintings, images, patterns, pastels, engravings, calligraphy and illuminations, carving, inlay, or similar methods used to mark metal, stone, wood or other substances, serigraphy, cameography, statues, carvings, architecture, crafts, miniatures and decorative art, textile products, fashion designs, photographic works and slides, graphics, comics and all kinds of typage.” The use of sketches, paintings, models, designs and similar works as industrial models and pictures does not affect their positions as intellectual and artistic works.”

In article 5 of the LIAW, cinematographic works are defined as: "A series of interrelated moving images, audible or silent, that can be shown by electronic or mechanical or similar means, regardless of the material in which they are detected, such as films or motion pictures that are scientific, instructive, technical or everyday events”

 

            In case of a violation, it is important to determine whether the subject of violation is considered a work of art, taking into account the above definitions.  As a matter of fact, if an artwork’s rights are violated, in accordance with article 66 to 72 of the Law on Intellectual and Artistic Works, the relevant measures that can be taken and legal remedies can be applied. If it is not considered an artwork, in accordance with article 84, appropriate measures will still be taken, but there will be no mention of a “copyright” violation. 

            

1.     In the Event that the Rights of an Artwork are Violated On Social Media:
 

If an artwork's rights are violated, the relevant provisions of the Law on Intellectual and Artistic Works will be applied directly. In accordance with the law, artworks have economic, moral and related rights. These rights are briefly referred to as “copyrights”. In case of a copyright violation; methods such as blocking access and/or requesting removal of content, filing a complaint with the Public Prosecutor's Office and filing a civil lawsuit will be used.

 

The economic rights of the owner of the work are communication to the public, processing, dissemination, reproduction and representation rights. Moral rights are the rights where the owner has the right to make their work public, decide the name or prohibit making changes on the work. If a work is published without permission on social media, it may be said that the owners right to transmit it to the public (which is one of the financial rights) has been violated. Because the right of transmission to the public, which is one of the financial rights, means the broadcasting of a work by wired or wireless broadcasting mediums such as radio-television or by means of signal, sound and/or image transmission, including digital transmission. Re-publishing the published works by other broadcasting mediums is also within the scope of the right of public transmission. Therefore, all kinds of publications made on the Internet violate the right of communication to the public.

 

In this regard, a regulation was made in article 71/1 of the FSEK: "Processing, representing, reproducing, modifying, distributing, transmitting it to the public, publishing, selling, buying it for commercial purposes, importing or exporting it, retaining, storing or producing an artwork for non-personal use without the written consent of the right holders, is punishable by imprisonment from one year to five years or a judicial fine." In this context, if a work is published on the Internet without permission, the owner of the work has the right to file a complaint. 

 

Justification of the relevant article is: "An elective offense definition has been made under subparagraph (1) of article. Within the framework of a commercial activity, the acts that constitute the crime in question are; an artwork being processed, reproduced, distributed, disseminated, published, replicated, sold or bought for commercial purposes, imported, exported, possessed, stored and illustrated without the written permission of the rightful owner. The subject of the offense is the intellectual work, whose moral or economic rights are protected by this Law. In order for this offense to occur, one of the actions in question must be carried out without the written permission of the rightful owner.". Therefore, it can be mentioned that if the work is published on the Internet without permission, the crime of “Encroachment on Economic, Moral or Related Rights” occurs. It is an offense to carry out any of the relevant actions without the written permission of the rightful owner. Therefore, a complaint can be filed to protect copyright from shares made on social media.

 

The second method that can be used is requesting for the access to be blocked.  It is possible to block access to the works which are subject to violation through the measure introduced by the additional article 4 of the LIAW. In accordance with the aforementioned additional article 4, in case the service and information content providers violate the rights of the right holders on the work, it can be decided by the holders to remove the infringed works from the content. In order to apply this procedure, a warning must first be sent to the content provider who published the work and ask them to stop the violation within three days. If the content provider does not comply with the rightholder's warning within a three-day period, the owner of the artwork can apply to the Public Prosecutor's Office and request the service provider to stop the service within three days. If the violation is stopped, the content provider will be provided with the service again.

 

            Another method is to file a civil lawsuit and claim compensation for the damage. In this regard, the provisions on civil cases were regulated in articles 66 to 70 of the LIAW. According to these provisions, the rightful owner of the work can file; a compensation case, a non-pecuniary compensation case and a case to determine whether there is a violation. 

 

In accordance with Article 68 of the LIAW, the amount of compensation that can be requested in case of a violation of financial rights has been determined as: “If an artwork is processed, represented, reproduced, modified, distributed, transmitted to the public, published, sold, bought for commercial purposes, imported or exported, retained, stored or produced for non-personal use without the written consent of the right holders, they may request threefold (at most) of the price they are able to request if a contract had been concluded, or the current value to be determined in accordance with the provisions of this Law.”  In accordance with this regulation, compensation up to three times the amount of the royalty fee to be claimed may be requested if the contract has been concluded to transmit the work in question to the public.

 

2.     In the Event that the Rights of a Work which is not an Artwork are Violated:

 

When a publication that is not an artwork is shared without permission; If there is a violation of personal rights, blocking the access may be requested. If there is not a violation, and the publication can be considered inside the scope of article 84 of the LIAW, both criminal and civil proceedings can be taken by applying the provisions of unfair competition.

 

In article 9 of the Law No. 5651, it is regulated that persons whose personal rights have been violated can request the removal of the content and/or the blocking of access by contacting the judge. In accordance with these provisions, it is possible to request access to and/or removal of the content that is a violation of personal rights.

 

As a matter of fact, in the event of a violation of personal rights or not, the provisions of the Law on Intellectual and Artistic Works, Article 84 can be applied . In accordance with this provision; “A person who rightfully reproduces or publishes a sign, a picture, or a sound for commercial purposes can ban them from being reproduces or published by a third party. Even if the violator is not a trafficker, provisions on unfair competition are applied to those who act contrary to the provisions of the first paragraph. The provision of this article also applies to all kinds of photographs that are not artworks, paintings that are determined by similar procedures, and movie products.” According to the relevant provision, it is possible to file a complaint with the Public Prosecutor's Office by applying unfair competition provisions on photographs, paintings and cinema products that are not artworks, as well as to file a compensation lawsuit.

 

CONCLUSION:

Various regulations have been made in our legal system regarding the violation of copyright through social media. In cases such as unauthorized sharing and modification of works, the rightful owners may request the removal of this publication, contact the Public Prosecutor's Office to initiate an investigation into the matter, or sue for damages. Since the regulations regarding social media are increasing and developing continually.