Do You Need a Licence to Use Music in News Content in Turkey?

First, the definitions: musical works and related rights

The Law defines music very briefly, but builds the structure of rights around it at length. Three definitions form the ground for the whole discussion:

Article 3 – Musical works are compositions of every kind, with or without words.

Article 1/B – (Added: 21/2/2001 - Law No. 4630, Art. 2)
j) Related rights: the rights held by holders of neighbouring rights and by film
   producers who carry out the first fixation of films, provided that they do not
   prejudice the moral and economic rights of the author,
k) Neighbouring rights: the rights held by artists who, without prejudice to the
   moral and economic rights of the author and with the author's permission,
   interpret, introduce, narrate, sing, play or otherwise perform a work in various
   forms in an original manner, by phonogram producers who first fix a performance
   or other sounds, and by radio and television organisations,

The definition in Article 3 protects the composition — with or without words. Article 1/B(j) and (k), by contrast, define the separate rights of the parties who perform, record and broadcast that composition. The conclusion is this: when you use a song in your news item you are using, at the same time, both the work and a particular recording of that work; these are two different sets of rights holders.

Layer 1 — Author's rights: the composer and the lyricist

Under FSEK Article 8, "the author of a work is the person who created it". In music this is the composer and, where there is one, the lyricist. Their economic rights are listed in Articles 20 to 25. The critical point is the last sentence of Article 20(1): "Economic rights are not dependent on one another. The disposition and exercise of one of them does not affect the others." In other words, permission for one right does not grant another.

• Art. 21 — Adaptation: arranging, remixing, shortening the duration and changing the tempo are adaptation. Speeding a song up in the news edit, or cutting it and reassembling it, touches this right.
• Art. 22 — Reproduction: reproduction of the work "in whole or in part, directly or indirectly, temporarily or permanently". Downloading the song onto the editing computer is reproduction, and so is uploading the video to a server.
• Art. 23 — Distribution: renting, lending, offering for sale or otherwise distributing the original or reproduced copies.
• Art. 24 — Performance: "reading, playing, performing and showing in public places by means of devices serving the transmission of signs, sound or images". Article 24(3) states expressly that the performance right may not be exercised by others without the written permission of the author or of the collecting society.
• Art. 25 — Communication to the public: the direct counterpart of internet publication. We take it separately below.

The counterpart of internet publication: FSEK Article 25

The answer to the question of which right in the Law is engaged by putting a video with music on a news website is Article 25. The heading of the article was "The right of broadcasting by radio" until Law No. 4630 brought it into its present form, and the phrase "digital transmission" entered the text with that amendment:

d) The right of communication to the public by devices serving the transmission of
signs, sound and/or images:
Article 25 – (Amended: 21/2/2001 - Law No. 4630, Art. 15)

The right to communicate a work to the public, by broadcasting its original or its
reproduced copies through organisations broadcasting by wire or wireless means such
as radio and television, satellite and cable, or by devices serving the transmission
of signs, sound and/or images, including digital transmission, and by the
rebroadcasting, by other broadcasting organisations, of broadcast works taken from
the broadcasts of such organisations, belongs exclusively to the author.

The author also has the right to authorise or prohibit the sale or other forms of
distribution or presentation to the public of the original or the reproduced copies
of the work by wire or wireless means, and the communication of the work to the
public by providing access to it at a place and time chosen by natural persons.

The phrase in the second paragraph — providing access to the work "at a place and time chosen by natural persons" — is the Law's exact expression for putting content on a news website, an app or a social media account. Because the reader opens the content at the moment of their choosing, this is called on-demand access, and the article expressly reserves it to the author. The phrase "rebroadcasting" in the first paragraph, for its part, separately subjects to permission the act of taking material from a broadcasting organisation's broadcast and broadcasting it again.

Layer 2 — Related rights: the performer and the phonogram producer

Having obtained the composer's permission does not give the right to use a particular recording of that song. There are separate rights holders over the recording, and they are governed by FSEK Article 80. The parts of the article that bear directly on news production are these:

Article 80 – (Amended: 21/2/2001 - Law No. 4630, Art. 32)
The rights related to the rights of the author are as follows:
1. Rights neighbouring on the rights of the author:

A) Performers have the following rights:
(2) A performer who interprets a work in an original manner with the permission of
    its author is exclusively entitled to authorise or prohibit the fixation of that
    performance, and the reproduction, sale, distribution, rental and lending of that
    fixation, and its communication to the public and its retransmission and
    performance by devices serving the transmission of signs, sound and/or images.
(4) The performer has the right to authorise or prohibit ... the communication to the
    public of the performance by providing access to it at a place and time chosen by
    natural persons.

B) Phonogram producers who first fix a performance or other sounds have the following
   rights after acquiring from the author and from the performer the authority to
   exercise the economic rights.
(1) The rights to authorise or prohibit the direct or indirect reproduction,
    distribution, sale, rental and public lending of a fixation made with the
    permission of the author and of the performer belong exclusively to the phonogram
    producer. Producers are exclusively entitled to authorise the communication to the
    public and the retransmission of their fixations by devices serving the
    transmission of signs, sound and/or images.

[...]

Where performances fixed on phonograms and films are communicated to the public in
any manner whatsoever, those who use them are obliged to pay an appropriate
remuneration in respect of such uses to the performers and to the producers, or to
the collecting societies in the relevant field, in addition to the authors.

[...]

The authorisations given by holders of neighbouring rights and by producers who carry
out the first fixation of films must be in writing.

Three sentences here are the ones most often overlooked in practice. First, the performer and the producer hold an exclusive right over communication to the public. Second, where there is communication to the public, users are obliged to pay an appropriate remuneration to the performer and the producer "in addition to the authors" — here the Law stacks the two layers one on top of the other; it does not put one in place of the other. Third, the authorisations of holders of neighbouring rights must be in writing.

When Article 37 works for music and when it does not

FSEK Article 37 permits certain parts of works to be taken, provided that this is in the nature of news reporting and does not exceed the scope of informing, and in connection with day-to-day events. Because music is also an "intellectual and artistic work", Article 37 can apply to music too — but only in cases where the music is the subject of the news. We worked the provision through in detail in the article on using short clips from video; here we isolate only the part that falls to music.

The rule can be reduced to a single sentence: if the music is the subject of the news, Article 37 is arguable; if the music is the background of the news, there is no Article 37. Background music is a licensing question in every case.

Article 80's own news exception and the "pursuit of profit" qualification

Article 80 separately lists the cases in which the written permission of the holder of neighbouring rights and of the film producer is not required. The first item on the list bears directly on journalism:

In the following cases the written permission of the holder of neighbouring rights
and of the film producer is not required:

1. The performance and presentation to the public of intellectual and artistic works
   for the purposes of public order, education and teaching, scientific research or
   news, and without the pursuit of profit.

2. The reproduction of intellectual and artistic works and of radio and television
   programmes for personal use, without the pursuit of broadcasting or of profit.

3. Short-term temporary fixations made by radio and television organisations with
   their own facilities for their own broadcasts.

4. The cases set out in Articles 30, 32, 34, 35, 43, 46 and 47 of this Law.

This application may not, without justified cause, prejudice the legitimate interests
of the rights holder, nor may it be contrary to the normal exploitation of the work.

The qualification in the text is plain: a news purpose is not enough on its own; the use must in addition be made without the pursuit of profit. For a commercial news website that generates advertising revenue, reliance on this qualification is contestable and fragile as a defence. Note too that the fourth item does not list Article 37 — the articles listed are 30, 32, 34, 35, 43, 46 and 47. In other words, a use for which you can rely on Article 37 on the author's-rights side does not automatically obtain the same protection on the related-rights side.

How a licence is obtained: the collecting societies regime

The Law provides for collecting societies so that rights are administered collectively rather than pursued from individual rights holders one by one. The founding provision is Article 42:

1. Establishment of collecting societies:
Article 42 – (Amended: 1/11/1983-2936, Art. 7)

(First paragraph amended: 21/2/2001 - Law No. 4630, Art. 21) Authors and holders of
rights related to the rights of authors may, ... in order to protect the common
interests of their members and to ensure the administration and pursuit of the rights
recognised by this Law, the collection of the fees to be received and their
distribution to the rights holders, establish more than one collecting society in
fields to be determined in accordance with the regulation issued by the President and
with the model statutes. ... they are obliged to apply to the Ministry in order to
obtain permission to operate as a collecting society.

(Amended: 21/2/2001 - Law No. 4630, Art. 21) The rights recognised by this Law to
authors and to holders of related rights may not be pursued within the country by any
other union, association or similar organisation than the collecting societies
established under this article.

For organisations that broadcast and transmit, the operative provision is Article 43. Its scope is drafted so as to take in organisations broadcasting over the internet as well:

Article 43 - (Amended: 3/3/2004-5101, Art. 14)

Radio and television organisations, satellite and cable broadcasting organisations,
and organisations that will broadcast and/or transmit by making use of existing or
future technical facilities, are obliged to obtain prior permission from the rights
holders in respect of operas, ballets, plays and similar works staged for the theatre
that they will use in their broadcasts.

For works, performances, phonograms and productions other than works staged for the
theatre, these organisations are obliged to obtain permission by concluding a contract
in conformity with Article 52 with the collecting societies in the relevant field, to
make the payments relating to such broadcasts and/or transmissions to those societies,
and to notify those societies of the lists of the works, performances, phonograms and
productions they have used.

• Article 43(2) imposes three separate obligations: obtaining permission by concluding a contract, making the payment to the collecting societies and notifying the lists of the works used. The third is the obligation most often skipped in practice; a broadcasting organisation that keeps no usage log cannot make that notification.
• Under Article 43(4) the collecting societies set the tariffs for the payments arising from broadcasting and transmission, on the basis of the classification made; contracts are concluded on the basis of those tariff amounts or of amounts determined by negotiation.
• Article 41 provides for a conciliation commission to be formed by the Ministry where no agreement is reached on the tariffs; the commission consists of one representative from the Ministry, two from the Competition Authority and one each from the collecting societies and from the professional organisations representing users, and by virtue of the reference in Article 43 it applies to broadcasting organisations as well.
• Article 41 also provides that places open to the public, whether entry to them is charged for or free, are subject to a separate regime. A broadcasting organisation's studio, office or event space may fall to be assessed separately in this context.

Royalty-free and licensed music libraries: a contractual solution

In news production the most practical route is to take title-sequence and background music from a licensed library. But this is not a statutory exception; it is a contractual solution: the library undertakes that it has gathered both layers of rights within itself, and grants you a usage licence. The scope of that licence is limited by the contract.

• The expression "royalty-free" is misleading. There is no category of royalty-free music in the Law; what is meant is a licence for which the fee has been paid up front or granted free of charge. The right continues to exist; permission has merely been given.
• Read from the text of the contract whether the licence covers the author's right, the related rights, or both. A licence granting only the rights in the recording leaves the composer's side uncovered.
• Check the territorial scope, the term and the list of media of the licence. A licence granting permission for "web" may not cover a television broadcast or a social media account.
• Look at whether the licence excludes news and current affairs content. Some libraries impose a separate reservation for political content, sensitive subjects or news programmes.
• Are sub-licensing and assignment possible? If you syndicate your news item to another organisation, the licence you hold may not cover that organisation.
• Is there an indemnity undertaking? Whether the library protects you if a third-party claim arrives must be written into the contract.
• Archive the licence document, the purchase invoice and the identification number of the file you downloaded. When a claim arrives, the burden of proof is on you.
• The permission the library gives does not change the limit set by the Law: the licence is limited to the rights the library itself holds. The same logic applies to images; the warnings in our article on whether free stock image sites are safe hold for music as well.

The written form requirement: FSEK Article 52

Whichever route you take to obtain permission, the Law imposes a formal requirement. FSEK Article 52: "Contracts and dispositions relating to economic rights must be in writing, and the rights that are their subject must be shown individually." These are two separate requirements: the contract must be in writing and the economic rights granted must be listed one by one. An email saying "you may use it" does not satisfy the second requirement. One of the closing sentences of Article 80 additionally makes written form compulsory for the authorisations of holders of neighbouring rights. That giving the source does not take the place of permission is set out in detail in our article on whether permission is still required when you credit the source.

Pre-publication checklist

MUSIC IN NEWS — PRE-PUBLICATION CHECKLIST

[ ] 1. Is the music the SUBJECT of the news, or its BACKGROUND?
       Subject    -> an FSEK Article 37 assessment can be made.
       Background -> no Article 37; go straight to the licensing route.

[ ] 2. Has the identity of the recording used been written down?
       Title / composer / lyricist / performer / producer / year of recording

[ ] 3. Is there LAYER 1 (author) permission?
       Scope: Art. 21 adaptation, Art. 22 reproduction, Art. 25 communication
              to the public
       Document: written contract (Art. 52) — are the rights listed INDIVIDUALLY?

[ ] 4. Is there LAYER 2 (related rights) permission?
       Performer + phonogram producer (Art. 80/1-A, 1-B)
       Document: WRITTEN permission (closing paragraphs of Art. 80)

[ ] 5. Is it covered by a collecting society contract?
       Art. 43(2): contract + payment + NOTIFICATION OF THE USAGE LIST
       Is a usage log being kept?

[ ] 6. If a licensed library was used:
       Which layer does the licence cover?
       Medium / term / territory / news-content reservation?
       Licence document + invoice + file identifier archived?

[ ] 7. Was any adaptation carried out during the edit?
       Cutting, speeding up, remixing, overlaying sound -> Art. 21
       Has adaptation permission been obtained separately?

[ ] 8. Has the source credit been written on screen and in the text?
       (risk under Art. 71(1)(3) and Art. 71(1)(5))

[ ] 9. Do the same permissions hold for the version that will be
       syndicated to social media?

[ ] 10. Have the decision and the documents been attached to the news record?

IF EVEN ONE IS BLANK: take the music out, or complete the permission.

The consequence of unauthorised use

If one of the layers is missing, the consequence is asserted by the rights holder of the layer that is missing. One of the closing paragraphs of Article 80 says so expressly: "Holders of rights related to the rights of authors also benefit, in the same way as authors, from the rights of action for the Removal of the Infringement, for the Prevention of the Infringement and for Compensation."

• Art. 68(1): from those who reproduce or communicate to the public a work, a performance, a phonogram or a production without obtaining written permission, the rights holders whose permission was not obtained may demand "up to three times" the amount that could have been demanded had a contract been concluded, or the going rate determined under the Law. The text of the article expressly lists holders of related rights as well.
• Art. 66: in an action for the removal of the infringement no fault is required, and where the act was committed by employees, an action may also be brought against the owner of the undertaking.
• Art. 71(1)(1): a person who communicates to the public or publishes a work, a performance, a phonogram or a production without the written permission of the rights holders is punished with imprisonment from one year to five years or a judicial fine. Under Article 75 the investigation of these offences depends on a complaint.
• We showed step by step how the amount of a claim is built up, and what the basis of the threefold calculation is, in our article on the calculation of compensation in copyright infringement.