A copyright claim arriving at a news website is usually summed up in a single sentence: "we demand three times the going rate". The basis for that sentence is Article 68 of the Law on Intellectual and Artistic Works No. 5846 ("FSEK"). But Article 68 is not a compensation provision standing on its own; the Law divides the consequences of infringement into four separate routes, and they do not substitute for one another. Below we take the articles from their literal texts and show how the basis of the calculation is built and when each claim comes into play.
The central provision: FSEK Article 68
The article was brought into its present form by Law No. 5728 of 23/1/2008 and consists of six paragraphs. In full it reads:
3. In the event of infringement of economic rights:
Article 68 – (Amended: 23/1/2008-5728, Art. 137)
From those who adapt, reproduce, distribute reproduced copies of, perform, or
communicate to the public by any device serving the transmission of signs, sound or
images, a work, a performance, a phonogram or a production without obtaining from the
rights holders the written permission required by this Law, the rights holders whose
permission was not obtained may demand up to three times the amount they could have
demanded had a contract been concluded, or up to three times the going rate to be
determined in accordance with the provisions of this Law.
If the copies reproduced without permission have not been put on sale, the rights
holder may demand the destruction of the reproduced copies and of the films, moulds
and similar devices serving reproduction, or their delivery to him against an
appropriate payment not exceeding the cost of production, or three times the amount
he could have demanded had there been a contract. This does not remove the civil
liability of the person who reproduced without permission.
If the copies reproduced without permission have been put on sale, the rights holder
may exercise one of the options in the second paragraph in respect of the copies in
the hands of the infringer.
For the second and third paragraphs to be applied by rights holders other than the
author, written permission to reproduce in conformity with Article 52 of this Law is
required.
Where one of the rights holders makes a demand under the second and third paragraphs,
the provisions of the Code of Criminal Procedure on seizure are not applied other
than for the purpose of obtaining evidence.
A person who demands a payment may assert all the rights and powers he could have had
against the infringer had he concluded a contract with him.The first paragraph requires four elements together: (1) that no written permission has been obtained, (2) that the act be adaptation, reproduction, distribution, performance or communication to the public, (3) that the person asserting the claim be a rights holder whose permission was not obtained, and (4) that the claim be tied to a payment. It matters that the text says "a work, a performance, a phonogram or a production": Article 68 covers holders of related rights alongside authors.
How "up to three times the going rate" works
The text of the paragraph identifies two alternative bases: "the amount that could have been demanded had a contract been concluded" or "the going rate to be determined in accordance with the provisions of this Law". In other words, the rights holder takes as the basis either the fee that would have been agreed had a licence contract been made at the moment of the infringement, or the going rate current in the market. The multiplier is applied on top of that basis.
- The wording in the text is "up to three times". This is a ceiling, not an automatic multiplier. The claim is always asserted at the upper limit; the court has a discretion up to that ceiling.
- No fault is required for this claim. There is no reference to intent, negligence or bad faith in the text of Article 68. Defences such as "we did not notice", "an intern uploaded it" or "we thought it came from the agency" do not reduce the payment claim.
- Nor is proof of loss required. The fact that the site earned nothing at all from the content does not remove the Article 68 payment.
- The paragraph works per work. If five photographs were used without permission, there are five separate bases and five separate claims.
- Under the final paragraph, a person demanding a payment may assert "all the rights and powers he could have had" had he concluded a contract with the infringer. In other words, the infringement is assessed as though a notional licence relationship had been established between the parties.
- Under Article 68(4), for the second and third paragraphs to be applied by rights holders other than the author, written permission to reproduce in conformity with Article 52 is required. Where the claim comes on behalf of an agency or a producer, this document may be requested.
How the going rate is determined
The Law does not define the going rate; it says only "to be determined in accordance with the provisions of this Law". In practice the basis is built on comparable evidence of the fee that would be payable were the work licensed for the same scope. What counts as a comparable varies with the scope of the infringement.
- The rights holder's own published tariff. Agencies, photo archives and image banks most often have a published price list; the claim is usually built from it.
- The collecting society tariff. On the music and performance side, the tariffs set by the collecting societies under FSEK Articles 41 and 43 serve as comparables. We dealt with how those tariffs are determined in our article on licensing for the use of music in news content.
- The rights holder's similar contracts. Licence contracts concluded with other publishers in the same period may be put forward as comparables.
- The scope of the use. Duration, the number of media, the territorial scope, exclusivity, whether the content sat on the home page or an inner page, and whether it was syndicated to social media all affect the basis directly.
- Which economic rights were infringed. Under FSEK Article 20 economic rights are not dependent on one another; if reproduction, adaptation and communication to the public were each infringed, the basis is built accordingly.
- Expert examination. Where the comparables are in dispute, the amount is determined during the proceedings by way of a court-appointed expert.
A worked calculation, step by step
The example below is entirely hypothetical. The Law contains no amount, no tariff and no table of multipliers; the figures here are numbers invented solely to show the mechanism, and they have no value as precedent. The only element that comes from the Law is the expression "up to three times" applied to the basis.
COPYRIGHT CLAIM CALCULATION — HYPOTHETICAL EXAMPLE
(every figure is an ASSUMPTION; the Law contains no amount and no tariff)
FACTS
A news website published 3 photographs belonging to a photo agency without
permission. The photographs stayed on the site for 8 months; 2 of them were
also syndicated to social media.
STEP 1 — COUNT THE ECONOMIC RIGHTS INFRINGED (FSEK Art. 20: the rights are separate)
- Art. 22 reproduction : uploading the files to the server -> YES
- Art. 25 communication to : made available on demand on the site -> YES
the public
- Art. 21 adaptation : cropping / adding text over the image -> YES, on 1 photo
STEP 2 — ESTABLISH THE BASIS (Art. 68(1): the contract fee OR the going rate)
The agency's published web licence tariff : [ASSUMPTION] 2,000 TL / photo / year
Additional social media medium fee : [ASSUMPTION] 500 TL / photo
Additional adaptation (crop/text) fee : [ASSUMPTION] 500 TL / photo
Photo 1 : 2,000 + 500 (social) + 500 (adaptation) = 3,000 TL
Photo 2 : 2,000 + 500 (social) = 2,500 TL
Photo 3 : 2,000 = 2,000 TL
------------------------------------------------------------
BASIS (total going rate) = 7,500 TL
STEP 3 — APPLY THE ART. 68(1) CEILING
Text: "...may demand UP TO THREE TIMES the going rate."
-> The claim is built on this basis and asserted at the UPPER LIMIT.
-> The words "up to" mark a ceiling; the court may assess a lower figure.
-> Fault and proof of loss are NOT required.
STEP 4 — KEEP MORAL DAMAGES SEPARATE (Art. 70(1))
If the name of the agency/photographer was never given, the moral right has
also been infringed. Moral damages are NOT INSIDE the Article 68 payment;
they are claimed as a separate head and assessed by the court.
STEP 5 — PECUNIARY DAMAGES ARE A SEPARATE ROUTE (Art. 70(2))
"A person whose economic rights have been prejudiced may, IF THE INFRINGER IS
AT FAULT, claim damages under the provisions relating to torts."
-> This route requires FAULT. The Art. 68 payment does not. Two different routes.
STEP 6 — IF THE PROFITS ARE CLAIMED, THEY ARE SET OFF (Art. 70(3))
"...may also demand, in addition to damages, that the profits obtained be
handed over to him. In that case the payment demanded under Article 68 is
deducted."
-> Double recovery is prevented.
RESULT (HYPOTHETICAL)
Basis : 7,500 TL [assumption]
Art. 68(1) claim : up to three times the basis
Moral damages : additionally, at the court's assessment
Pecuniary damages : dependent on proof of fault, additionally
Handover of profits : if claimed, the Art. 68 payment is deductedWhat the example really shows is not the figures but the structure: the basis is built according to the scope of the economic rights infringed, the multiplier is applied on top of that basis, and moral damages and pecuniary damages are separate heads outside this calculation.
Article 68(2) and (3): copies, destruction and the delivery option
The second paragraph offers the rights holder three options where the copies reproduced without permission have not been put on sale. The third paragraph provides that where the copies have been put on sale, one of the same options may be exercised in respect of the copies remaining in the infringer's hands.
- Option 1 — Destruction: destruction of the reproduced copies and of "the films, moulds and similar devices serving reproduction".
- Option 2 — Delivery: delivery of the copies to the rights holder "against an appropriate payment not exceeding the cost of production".
- Option 3 — Payment: three times the amount that could have been demanded had there been a contract.
- The last sentence of the paragraph is plain: even where one of these options is used, it "does not remove the civil liability of the person who reproduced without permission".
- In digital publishing the concept of a "copy" works differently from physical printing; but under Article 22 a file on a server is a reproduction too. When a claim arrives, it is not enough to remove the files from the page: archive and cache copies must be dealt with as well.
Article 66 — Removal of the infringement: the route where no fault is required
Alongside the payment claim, the first route a rights holder takes is the removal of the infringement. The paragraphs of Article 66 are critical for publishers.
- Para. 1: "A person whose moral and economic rights are infringed may bring an action against the infringer for the removal of the infringement."
- Para. 2: "If the infringement was committed by the representative or the employees of an undertaking in the course of performing their duties, an action may also be brought against the owner of the undertaking." This is the basis on which a publisher can be sued for the act of a reporter or an editor.
- Para. 3: "The fault of the infringer or of the persons referred to in the second paragraph is not a condition." A good-faith defence does not bar this action.
- Para. 4: the court decides on the necessary measures, assessing the scope of the rights, the extent of the infringement, whether there is fault and, if so, its gravity.
- Para. 5: "The author may bring the actions for the removal and the prevention of the infringement also in the place where he resides." In other words, the action does not have to be brought in the province where your site is located.
- Under Article 69, a rights holder exposed to the danger of an infringement may also sue for the prevention of a probable infringement; Article 66(2), (3) and (4) apply here too.
Article 67 — Where the source has not been given
The civil consequence of failing to give a source is in Article 67. The second and third paragraphs of the article are read together:
Article 67 –
[para. 2] Where the author's name has not been placed on the work at all, or has been
placed incorrectly, or where the name placed is of such a nature as to cause
confusion, and the author, in addition to the action for a declaration referred to in
Article 15, has demanded the removal of the infringement, the infringer is obliged to
insert the author's name both on the original and on the reproduced copies in
circulation. The publication of the judgment in not more than 3 newspapers may be
demanded, at the expense of the infringer.
[para. 3] In the cases listed in Articles 32, 33, 34, 35, 36, 39 and 40, where the
source has been stated incorrectly or insufficiently, or where no source has been
given at all, the provision of the second paragraph applies.Two conclusions follow. First, the sanction for failing to give a source is not only monetary: the insertion of the name on the copies may be required, and publication of the judgment in not more than 3 newspapers, at the infringer's expense, may be demanded. Second, Article 37 is not among the articles listed in paragraph 3; those listed are 32, 33, 34, 35, 36, 39 and 40. We dealt with the detail of the attribution regime in our article on the penalty for republishing without giving credit.
Article 70 — Pecuniary and moral damages: heads separate from Article 68
Article 68 is a claim for a payment; Article 70 governs the action for damages. The two rest on different legal bases and their conditions differ.
III – Action for damages:
Article 70 – (First paragraph amended: 7/6/1995 - 4110, Art. 22)
A person whose moral rights have been prejudiced may bring an action for the payment
of moral damages in respect of the non-pecuniary loss suffered. The court may also
award another form of moral compensation in place of, or in addition to, that sum.
A person whose economic rights have been prejudiced may, if the infringer is at fault,
claim damages under the provisions relating to torts.
In the cases set out in the first and second paragraphs, the person whose rights have
been infringed may also demand, in addition to damages, that the profits obtained be
handed over to him. In that case the payment demanded under Article 68 is deducted.- Moral damages (para. 1) depend on the infringement of moral rights: the name not being given, the work being altered without right, an undisclosed work being published without permission, and so on. They are not inside the Article 68 payment; they are claimed in addition.
- Pecuniary damages (para. 2) require fault. The payment claim under Article 68 does not; this is the clearest difference between the two.
- If the handover of profits (para. 3) is demanded, the payment demanded under Article 68 is deducted. This is how the Law prevents double recovery.
- Under paragraph 1 the court may award "another form of moral compensation in place of, or in addition to, that sum"; the sanction, in other words, need not always be monetary.
Articles 71 and 72 — The criminal provisions
Alongside the civil claims, the criminal route is also open. Article 71 lists the acts that infringe moral, economic or related rights. The subparagraphs most often encountered in journalism are these:
| Act | Basis | Penalty (as worded in the text of the Law) |
|---|---|---|
| Adapting, performing, reproducing, altering, distributing, communicating to the public or publishing a work, a performance, a phonogram or a production without the written permission of the rights holders | Art. 71(1)(1) | Imprisonment from one year to five years or a judicial fine |
| Putting one's own name on a work belonging to another as though it were one's own work | Art. 71(1)(2) | Imprisonment from six months to two years or a judicial fine; where the act is committed by way of distribution or publication, the upper limit of imprisonment is five years and no judicial fine may be imposed |
| Quoting from a work without giving the source | Art. 71(1)(3) | Imprisonment from six months to two years or a judicial fine |
| Making a public statement about the content of an undisclosed work without the permission of the rights holders | Art. 71(1)(4) | Imprisonment of up to six months |
| Giving an insufficient, incorrect or misleading source in relation to a work | Art. 71(1)(5) | Imprisonment of up to six months |
| Reproducing, distributing, disseminating or publishing a work, a performance, a phonogram or a production using the name of a well-known other person | Art. 71(1)(6) | Imprisonment from three months to one year or a judicial fine |
| Information content providers who continue to infringe the rights recognised by the Law | Art. 71 (additional paragraph) | Where the act does not constitute an offence requiring a heavier penalty, imprisonment from three months to two years |
| Manufacturing, importing, distributing or selling products and devices intended to circumvent effective technological measures, or providing services relating to them | Art. 72 | Imprisonment from six months to two years |
Two procedural notes matter. First, under Article 75(1) "investigation and prosecution in respect of the offences listed in Articles 71 and 72 depend on a complaint", and for the complaint to be valid the rights holders or the collecting societies must submit to the public prosecutor's office the documents proving their rights. Second, Article 72 punishes not the act of circumvention itself but the products, devices and services directed at circumvention.
The relationship with Article 24 of Law No. 5187: which applies when
There is a second provision on republication: Article 24 of Press Law No. 5187 ("the Press Law") is headed "Republication" and subjects the republication, without the source being given, of news, articles and pictures published in a periodical to a separate fine. The points at which the two sets of rules intersect and diverge are these:
| Criterion | FSEK (No. 5846) | Press Law (No. 5187), Art. 24 |
|---|---|---|
| What it protects | The moral and economic rights in a work, and related rights | News, articles and pictures published in a periodical |
| Who asserts it | The rights holder: the author, the performer, the producer, the agency | The Law itself; it is applied as a fine |
| Nature of the claim | A payment (Art. 68), removal and prevention of the infringement (Arts. 66, 69), damages (Art. 70), criminal penalty (Arts. 71-72) | A fine |
| Where the source has been given | Giving the source does not take the place of permission; the infringement of economic rights may continue | The penalty in the first paragraph does not arise; but where the right of republication has been reserved and the permission of the owner of the periodical has not been obtained, a separate penalty is provided |
| Type of route | Both a civil and a criminal route; the criminal route depends on a complaint under Article 75 | A monetary sanction |
In practice the two regimes may come into play together over the same act: republishing an agency report without giving the source may be the subject both of Article 24 of Law No. 5187 and of Articles 68 and 71 of FSEK. We dealt with the detail of this in our article on whether republishing an agency report without permission is an offence; for the counterpart on the image side, see the use of a photograph from social media in a news report.
Steps to follow when faced with an infringement claim
WHEN A COPYRIGHT CLAIM ARRIVES — ORDER OF WORK
[1] THE REFLEX OF BUYING TIME
Do not answer the claim on the amount straight away. First confirm in
writing that you are examining the matter and will revert within a
reasonable period.
[2] SEPARATE OUT THE LEGAL BASIS OF THE CLAIM
- Is it an Art. 68 payment claim? (no fault required)
- Is it Art. 70 damages? (fault required for pecuniary damages)
- Is it an Art. 66 removal claim? (takedown / correction)
- Is it a criminal complaint? (Art. 71 / Art. 75 -> depends on a complaint)
- Is it a step under Art. 24 of Law No. 5187?
[3] QUESTION THE ENTITLEMENT
Is the claimant the author, an assignee, or a collecting society?
Art. 68(4): for rights holders other than the author, a WRITTEN
reproduction permission document conforming to Art. 52 may be requested.
Art. 75(1): in a criminal complaint the document proving entitlement is
compulsory.
[4] PULL OUT YOUR OWN RECORDS
- when the content was published, and who uploaded it
- whether the source credit was written, and how
- whether there is a permission/licence document, and what it covers
- which media the content was syndicated to
- page view and revenue data
[5] DO YOU HAVE A BASIS FOR LAWFULNESS
Art. 36 (daily news / press summary) - Art. 37 (clips for news purposes)
Art. 31 (legislation and judicial decisions) - Art. 32 (speeches)
Art. 40 (works in public places)
Set out your basis IN WRITING.
[6] LIMIT THE DAMAGE
If you have no basis, take the content down, clear the archive and cache
copies as well, and withdraw the social media posts.
NOTE: Taking it down does not remove the Art. 68 payment; it stops it growing.
[7] CALCULATE THE BASIS YOURSELF AS WELL
Ask the other side in writing how the going rate has been calculated.
Do your own comparables research. The claim comes from the ceiling;
the basis is open to argument.
[8] GO TO A LAWYER
Under Art. 66(5) the action may also be brought where the rights holder
resides. The criminal route depends on a complaint under Art. 75; there are
time limits and documentary requirements.
[9] PUT THE PROCESS ON RECORD
File all the correspondence, the time of removal and the internal decision.
Write the editorial rule that will prevent the same mistake recurring.