Republication without crediting the source is not met by a single provision in Turkish law. There are two separate regimes, and they operate independently of one another: Article 24 of Press Law No. 5187 ("the Press Law"), and the civil and criminal provisions of the Law on Intellectual and Artistic Works No. 5846 ("FSEK"). The same act may fall within the scope of both. In this article I set out the two regimes separately, and explain which one applies when and whether they can be applied together.
Regime A — Article 24 of Press Law No. 5187
The Press Law governs republication in a separate article and penalises two different acts. The article is headed "Republication":
| Paragraph | Act penalised | Nominal amount in the text of the statute |
|---|---|---|
| Article 24(1) | Republishing news, texts and pictures published in a periodical <b>without crediting the source</b> | A heavy fine of TL 5 billion - TL 10 billion |
| Article 24(2) | Republishing such content <b>without the permission of the owner of the periodical, even though the right of republication has been reserved</b> | A heavy fine of TL 20 billion - TL 40 billion |
The difference between the two paragraphs is the criminal-law counterpart of the distinction we have emphasised repeatedly throughout this series. The first paragraph penalises the absence of a credit, the second the absence of permission. Crediting the source does not remove the act described in the second paragraph; we established that point through the provisions in our article discussing whether crediting the source replaces permission.
Whose content does Article 24 cover? The definition of a "periodical"
Article 24 speaks of content "published in a periodical". The scope of that definition is set out in Article 2 of the Press Law and is decisive for online news publishing:
- Press Law Article 2(c) — Periodical: printed works such as newspapers and magazines published at regular intervals, together with the output of news agencies and online news sites. Online news sites were added to this definition by Law No. 7418
- Press Law Article 2(a) — Printed work: writings, pictures and similar works printed by any means of printing or reproduced by other means for the purpose of publication, together with the output of news agencies
- Press Law Article 1 — Scope: the printing and publication of printed works, and online news sites
Regime B — the civil provisions of FSEK
FSEK treats the failure to credit a source as an infringement of moral rights, and treats unauthorised use separately as an infringement of economic rights. The legal consequences of these two heads are different.
Article 67 — the civil consequence of failing to credit the source
FSEK Article 67 — third paragraph
"In the cases enumerated in Articles 32, 33, 34, 35, 36, 39 and 40, where
the source has been stated incorrectly or insufficiently, or has not been
stated at all, the provision of the second paragraph applies."
FSEK Article 67 — second paragraph (the consequence referred to)
"...the infringer is obliged to insert the author's name both on the
original and on the reproduced copies in circulation. Publication of the
judgment in up to 3 newspapers may be claimed, at the infringer's expense."
(Unofficial translation; the Turkish text is authoritative.)Note three points. First, the paragraph places three possibilities on an equal footing: an incorrect source, an insufficient source, and no source at all. Second, Article 36 is among the articles enumerated — that is, the quotation of newspaper contents falls within the scope of this provision. Third, Article 37 is not enumerated in that list.
Article 68 — the financial consequence of unauthorised use
FSEK Article 68 — first paragraph
"Rightholders whose permission was not obtained may claim from those who,
without obtaining written permission from the rightholders in accordance
with this Law, 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, up to
three times the amount they could have demanded had a contract been
concluded, or three times the current market value determined in accordance
with the provisions of this Law."
(Unofficial translation.)This is the claim most often brought against news websites. Proof of fault or of loss is not required for the claim to arise; the basis of the provision is the unauthorised use itself. We set out in detail how the amount is determined and the components of the calculation in our article on calculating damages for copyright infringement.
Articles 66, 69 and 70 — the routes to court
- Article 66 (cessation of the infringement): a person whose moral and economic rights have been infringed may bring an action for the cessation of the infringement. Fault on the part of the infringer is not required. Where the infringement was committed by the representative or employees of a business in the course of performing their duties, proceedings may also be brought against the proprietor of the business. The author may also sue in the place where he resides
- Article 69 (prevention of the infringement): an author exposed to the risk of infringement may bring an action for the prevention of a probable infringement; the same provision applies where the continuation or repetition of an infringement is probable
- Article 70 (damages): a person whose moral rights have been prejudiced may claim non-pecuniary damages. A person whose economic rights have been prejudiced may claim damages under the provisions on torts where the infringer is at fault. In both cases the surrender of the profit obtained may also be claimed in addition to damages; in that case the amount claimed under Article 68 is deducted
Regime B — the criminal provisions of FSEK
FSEK Article 71, as amended by Law No. 5728, enumerates the acts infringing moral, economic or related rights. Three subparagraphs are decisive for news and media:
| Subparagraph | Act | Penalty |
|---|---|---|
| Article 71(1)(1) | Adapting, performing, reproducing, altering, distributing, communicating to the public or publishing a work <b>without the written permission</b> of the rightholder | Imprisonment from one to five years or a judicial fine |
| Article 71(1)(3) | Quoting from a work <b>without crediting the source</b> | Imprisonment from six months to two years or a judicial fine |
| Article 71(1)(5) | Crediting the source of a work in an <b>insufficient, incorrect or misleading manner</b> | Imprisonment of up to six months |
| Article 71(1)(2) | Putting one's own name on another person's work as if it were one's own | 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 a judicial fine may not be imposed |
| Article 71, final paragraphs | Persons committing the acts in the first paragraph of Additional Article 4 without authority, and <b>information content providers</b> who continue to infringe the rights recognised in the Law | Where the act does not constitute an offence requiring a heavier penalty, imprisonment from three months to two years |
FSEK Article 72 governs a separate field: persons who manufacture or import, distribute, sell, rent out, hold for commercial purposes, or provide advertising, marketing, design or implementation services for, products and devices intended to circumvent effective technological measures securing control of the use of works, performances, phonograms, productions and broadcasts are punished by imprisonment from six months to two years. The article penalises not the act of circumvention itself, but the products, devices and services directed at circumvention.
Can the two regimes be applied together?
The two regimes are laid down in different statutes and protect different interests. Article 24 of the Press Law concerns the ordering of the press, while FSEK concerns the author's rights. In theory the same act may satisfy the definition in both statutes. The table below shows which regime the typical scenarios encountered in the field fall into.
| Scenario | Press Law Article 24 | FSEK |
|---|---|---|
| Republishing a story published in a periodical without crediting the source | Within Article 24(1) | Within Article 71(1)(3) and Article 67(3) |
| Publishing content whose right of republication has been reserved without permission, but writing the credit | Within Article 24(2) | If the content is a work, Article 68(1) and Article 71(1)(1) may come into play |
| Obtaining permission but failing to credit the source | Within Article 24(1) | Within Article 67(3) and Article 71(1)(3) |
| Crediting the source but doing so incompletely | Assessed in the light of Article 24(1) | Article 67(3) (insufficient source) and Article 71(1)(5) |
| Quoting within the free-use exemption and crediting the source in full | No offence is made out | No offence is made out |
Two critical procedural points
- Time limits for proceedings (Press Law Article 26, as amended by Law No. 7418): the Press Law prescribes short periods for offences committed through printed works, and for online news sites the period for bringing proceedings is four months; that period runs from the date of the notification of the offence. The periods are in the nature of conditions of prosecution
- Prohibition on conversion into imprisonment (Press Law Article 28): fines imposed for offences other than those in Articles 18 and 22 may not be converted into a custodial sentence — Article 24 falls outside those exceptions
These periods are decisive for the complainant and for the party complained against alike. In a republication dispute, the first thing to do is to establish which date counts as the starting point.
Who bears the liability? The organisation or the editor?
FSEK answers this question with two provisions. Under Article 66(2), where the infringement was committed by the representative or employees of a business in the course of performing their duties, proceedings may also be brought against the proprietor of the business. Article 66(3) then says that "fault on the part of the infringer or of the persons referred to in the second paragraph is not required". In other words, in an action for cessation, defences of good faith, ignorance or the personal error of an employee do not change the outcome.
In addition, Law No. 5187 establishes a separate liability regime for pecuniary and non-pecuniary loss arising from acts committed through printed works or online news sites. On the institutional side the meaning of this is: liability does not stop with the editor who copied the text.
How do you reduce the risk?
REPUBLICATION RISK CHECK
1) WHAT IS THE CONTENT?
[ ] Daily news/report -> the Article 36(1) freedom + Article 36(3) credit
[ ] Article/column -> FSEK Article 36(2); has the right of quotation
been reserved?
[ ] Photograph/video -> separate assessment (Articles 4(5), 2(3),
84(3), 37)
2) HAS THE SOURCE BEEN WRITTEN? (the four elements of Article 36(3))
[ ] Name of the publication / agency
[ ] Name of the original source if the content was taken over
[ ] Date (and issue number in print)
[ ] Author's name / pen name / sign
3) IS PERMISSION REQUIRED?
[ ] Has the right of republication been reserved?
(Press Law Article 24(2))
[ ] Is there written permission? (FSEK Article 52: in writing +
rights enumerated individually)
4) HAVE RECORDS BEEN KEPT?
[ ] The address the content was taken from, and the date
[ ] The permission correspondence / contract reference
[ ] A screen capture of the published version showing the source line
5) IF AN OBJECTION ARRIVES
[ ] If the credit is incomplete, complete it at once
(this reduces the Article 67(3) risk)
[ ] If there is no permission, take the content down or obtain permission
[ ] Keep track of the time limits (Press Law Article 26)Making sure the source line carries the four elements the statute requires is the item on this list that is easiest to apply and that removes the most risk. You can find ready-made templates in our article on crediting sources, and the cases in which quotation is free in our article on the freedom to quote news. On the institutional side, keeping source fields, permission records and quotation history in a single content record makes both compliance and proof easier; to design your publishing infrastructure along these lines you can get in touch with us or look at the field definitions on the news publishing software page.