Is Using a Screenshot Copyright Infringement in Turkey?

Which act does a screenshot correspond to under FSEK?

The moment you take the capture, you have produced a copy of the content displayed on the screen. Under the Law on Intellectual and Artistic Works No. 5846 ("FSEK"), that is reproduction within the meaning of Article 22.

Article 22 - (Amended: 7/6/1995 - 4110/8)

(Amended: 21/2/2001 - 4630/13) The right to reproduce the original or
copies of a work, in any form or by any method, in whole or in part,
directly or indirectly, temporarily or permanently, belongs
exclusively to the author.

Making a second copy from the original of a work, or recording the
work onto any device serving the transmission and repetition of signs,
sounds and images, whether known or to be developed in the future, ...
is likewise deemed to be reproduction.

The wording "in any form or by any method" and "recording onto any device, whether known or to be developed in the future" covers a screenshot without any doubt. If you then publish the capture in a story, communication to the public under Article 25 is added on top. In other words, using a screenshot as a rule engages two separate economic rights at once.

What did you capture? The outcome changes accordingly

The critical question is what was on the screen. The same act - taking a screenshot - is subject to a different legal regime depending on the content.

Screenshot of a news text: the field of Article 36

Showing another news site's story text by way of a screenshot usually falls within the freedom granted by Article 36(1). The text of the provision reads:

Article 36 -

Without prejudice to the provision of Article 15 of the Press Law,
daily news items and news that have been disseminated to the public by
the press or by radio may be freely quoted.

Where the right of quotation has not been expressly reserved, articles
and columns on social, political or economic matters of the day
published in newspapers or magazines may freely be taken over,
verbatim or in adapted form, by other newspapers and magazines and
disseminated by radio or in any other manner. Even where the right of
quotation has been reserved, it is permissible to take such articles
and columns in abridged form as press summaries and to disseminate
them by radio or in any other manner.

In all these cases it is necessary to state the name of the newspaper,
magazine or agency quoted from and, if these too were taken from
another source, the name, date and issue number of that source, as
well as the name, pen name or mark of the authors of the articles.

The trap here is this: a screenshot does not cut out the text - it takes the page as a whole. If there is a photograph on the page, you have reproduced that photograph as well, and the photograph's regime is not Article 36 but Articles 4, 2 and 84 and, where required, Article 86. Cropping the screenshot down to no more than the content requires is therefore the simplest and most effective step in managing legal risk.

Does the freedom of quotation in FSEK Article 35 help here?

Only to a limited extent. Article 35 ties quotation to four situations, and its sub-paragraphs contain no reference to a "newspaper", "news" or "the press"; the terms used are "an independent work of science and literature" and "a scientific work". A news text on a news website does not sit directly within those definitions. The special regime for quoting newspapers and news is in Article 36. We dealt with the detail of that in our article on quoting news from another site.

• Article 35(1): taking certain sentences and passages of a work that has been disclosed to the public into an independent work of science and literature.
• Article 35(3): including works of fine art that have been disclosed to the public and other published works in a scientific work, in a proportion justified by the purpose and for the purpose of explaining its contents.
• Article 35, final paragraph: "The quotation must be made in such a way that it is apparent." In other words the quotation must be marked so that it can be recognised as a quotation.
• Limit: the proportionality criterion in the provision ("in a proportion justified by the purpose") does not justify full-page screenshots.

In which situations does Article 37 apply?

Article 37 makes it possible, provided that the use is in the nature of news and does not exceed the scope of informing the public, to take certain parts of intellectual and artistic works in connection with daily events. That freedom may not be exercised in a manner that harms the legitimate interests of the rights holder or that conflicts with a normal exploitation of the work.

• If the screenshot is the subject of the story ("this statement appeared on that institution's website"), the ground under Article 37 is strong.
• If the screenshot is decoration for the story (a picture of a page put in because no image could be found), there is no ground under Article 37.
• When the link to the daily event is broken - for instance using a screenshot from a year ago in a general feature - the basis in Article 37 weakens.
• Article 37 says "certain parts"; a capture that stands in for the content as a whole does not sit with that wording.
• The text of Article 37 contains no express sentence requiring the source to be cited, and Article 37 is not listed in Article 67(3); Article 71(1)(3), by contrast, punishes quotation without citing the source without distinguishing between provisions.

The distinction between an evidential archive and use for publication

These two acts are not the same and are not subject to the same provisions. Keeping a screenshot in the newsroom archive is reproduction; publishing it in a story adds communication to the public on top of that. Article 38(1) allows reproduction for personal use without any profit-making purpose; but that exception covers only reproduction, not distribution or communication to the public, and the corporate archive of a media organisation does not sit within the definition of "personal use".

Citing the source: how is it written?

Article 36(3) sets out clearly what a source citation must contain. Use the same elements for a screenshot; place the credit above or below the image, legibly.

SCREENSHOT CREDIT TEMPLATES

1) Capture of text taken from another news site
   "Screenshot: [publication name], [headline],
    [dd.mm.yyyy], author: [Full Name]. Accessed: [dd.mm.yyyy hh:mm]."

2) Capture of a social media post
   "Screenshot: @[username] / [platform],
    [dd.mm.yyyy hh:mm]. Accessed: [dd.mm.yyyy hh:mm].
     The post has been unavailable since [date]."

3) Capture of a public institution's page
   "Screenshot: official website of [institution name],
    [URL], accessed: [dd.mm.yyyy hh:mm]."

4) Capture of agency material
   "Screenshot: [agency name], [date and time filed],
    story code: [code]. Accessed: [dd.mm.yyyy hh:mm]."

WHAT EVERY CREDIT MUST CONTAIN (to the standard of Art. 36(3))
  - the name of the newspaper/magazine/agency quoted from
  - if the content was taken from another source, the name of the
    original source
  - the date and issue number
  - the name, pen name or mark of the author of the article

We set out in detail which provision governs the duty to cite the source and how, together with the formal details, in our article on citing sources in news, and the sanction for failing to cite the source in our article on the penalty for republishing without credit.

Screenshot use checklist

IDENTIFYING THE CONTENT
[ ] What exactly is in the capture: text / photograph / person /
    interface?
[ ] Each element assessed separately (one may be free while another
    is not)
[ ] Whether the capture is the SUBJECT or the DECORATION of the story
    has been written down

NARROWING THE SCOPE
[ ] The capture cropped to the necessary area only
[ ] Third-party photographs on the page taken out of the frame
[ ] Advertising and unrelated images cropped out
[ ] Unnecessary personal data (phone, e-mail, address) masked

LEGAL BASIS
[ ] The provision relied on written into the story notes
    (Art. 31 / Art. 36(1) / Art. 36(2) / Art. 37 / written permission
     under Art. 52)
[ ] Checked whether the source site carries a "right of quotation
    reserved" notice
[ ] If there is a photograph, a separate permission/exception
    assessment carried out
[ ] If there is a recognisable person, an assessment under Art. 86
    carried out

RECORD
[ ] Credit line added next to the image
[ ] URL + date and time of access recorded
[ ] The original (uncropped) capture kept in the archive - not
    published
[ ] The person who took it and the date entered in the archive record

Captures of software interfaces and website designs

There are two layers in a capture of an application's or a site's interface. A computer program is deemed a work of science and literature under FSEK Article 2(1). The last paragraph of Article 2, on the other hand, draws a clear limit: "the ideas and principles underlying any element of a computer program, including those underlying its interface, are not deemed to be works." Graphic elements, icons and photographs appearing in the interface may, however, separately be works under Article 4. So while the idea of the layout that appears on screen is not protected, the visual elements that make up that screen may be.

What happens in the event of an infringement?

Where a screenshot is used without permission and without any exception to rely on, the rights holder may claim, under FSEK Article 68(1), up to three times the amount that could have been demanded had a contract been concluded, or three times the current market value. Under Article 66(3) fault is not required for that claim, and under Article 66(2), if the act was committed by an employee, proceedings may also be brought against the owner of the business. Quotation without citing the source additionally carries, under Article 71(1)(3), imprisonment from six months to two years or a judicial fine; while citing the source insufficiently, incorrectly or misleadingly carries imprisonment of up to six months under Article 71(1)(5). We covered how the damages side is calculated in our article on damages for copyright infringement.

A durable fix on the newsroom side

The credit for a screenshot, whether it was cropped, the provision it relies on and the date of access should all be recorded together with the image. If that information is kept somewhere separate from the story, it is lost months later and you are left unable to defend yourself when a claim arrives. The KEYDAL news publishing software lets you define source, permission and access-date fields on media records and block publication while those fields are empty.