Agency copy is where copyright arguments become most tangled, because two separate legal layers sit on top of one another here. The first is the quotation regime of the Law on Intellectual and Artistic Works No. 5846 ("FSEK"); the second is the subscription contract you signed with the agency. These two layers have different rules, different sanctions and different counterparties. Below I set out each of them separately and show which one operates in which situation.
The first layer: what does FSEK Article 36 say?
The first paragraph of FSEK Article 36 leaves news quotation free, but makes the freedom conditional:
FSEK Article 36 — first paragraph
"Without prejudice to the provision of Article 15 of the Press Law, daily
news and reports that have been disseminated to the public by the press or
by radio may be freely quoted."
(Unofficial translation; the Turkish text is authoritative.)The critical phrase is this: "disseminated to the public by the press or by radio". The paragraph does not cover content that has not yet been opened to the public. In the case of agency copy this produces a decisive distinction.
Is an agency bulletin treated as having been "disseminated to the public"?
There are two different situations here, and their consequences differ.
| Situation | Assessment | Result |
|---|---|---|
| The agency story has been published in a newspaper, on a news site or on radio, and you see it there | The content is in a state of having been "disseminated to the public by the press or by radio" | This is a case falling within Article 36(1); crediting the source under Article 36(3) is mandatory |
| The agency bulletin has been sent on a closed circuit to subscribers only and has not yet been published anywhere | The state of having been "disseminated to the public by the press or by radio" required by the paragraph may not have come about | Relying on Article 36(1) is arguable; and under FSEK Article 7 a work is made public through its presentation to the public with the consent of the rightholder |
Article 36(3) expressly names news agencies
When it governs the duty to credit the source, FSEK names news agencies by name. The text of the third paragraph reads:
FSEK Article 36 — third paragraph
"In all these cases it is necessary to state the name of the newspaper,
periodical or news agency quoted and, where these in turn have taken the
material from another source, the name of that source, together with the
date and issue number, and in addition the name, pen name or sign of the
authors of the articles."
(Unofficial translation.)This has two practical consequences. First, writing the name of the agency in agency-sourced content is a statutory obligation. Second, if you took the agency story over from a newspaper, then under the rule "where these in turn have taken the material from another source, the name of that source", the names of both the newspaper and the agency are written. We give the templates, under a separate heading for agency copy, in our article on crediting sources.
The second layer: the subscription contract
This is the point most often overlooked. The freedom under FSEK and the contract you made with the agency are not on the same plane. FSEK grants you a possibility arising from statute; the contract creates an obligation you have assumed by your own will. Breach of each produces different consequences.
| The FSEK layer | The contractual layer | |
|---|---|---|
| Its source | The statute (Law No. 5846, Article 36, Articles 20-25) | The subscription or licence contract |
| Counterparty | The author / rightholder | The agency, as the other party to the contract |
| Name of the breach | Infringement of economic or moral rights | Breach of contract |
| Typical consequence | The claim under Article 68(1), cessation under Article 66, damages under Article 70, criminal penalties under Article 71 | The consequences agreed in the contract: termination, a contractual penalty, damages |
| Is crediting the source enough? | In free cases yes, in cases that are not free no | Whatever the contract says; crediting the source does not cure a breach of contract |
In other words, breaching the terms of your subscription is a separate matter from infringing FSEK. If your contract contains clauses such as "the content may be used only on the subscriber publication's own platform", "it may not be transferred to group companies", "the full text may not be shared on social media" or "the credit shall be written in the following form", those clauses bind you independently of FSEK. Even where FSEK Article 36(1) grants you a possibility, it does not remove a restriction you have assumed by contract.
How does Press Law No. 5187 position news agencies?
The Press Law brings the output of news agencies within its own definitions. The consequence is that agency content is subject to the Press Law regime:
- 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 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 by Law No. 7418)
- Press Law Article 2(d) — Nationally distributed periodical: the output of news agencies is enumerated within this definition as well
The direct consequence of these definitions is that the output of a news agency is a periodical. Accordingly, the phrase "news, texts and pictures published in a periodical" in Article 24 of the Press Law covers agency content too.
The criminal dimension: which regime is engaged?
Let us return to the question in the headline: is publishing agency copy without permission a crime? The answer depends on which act you have committed, and more than one regime may be engaged at the same time.
| Act | Provision engaged | Its character |
|---|---|---|
| Quoting an agency story that has been disseminated to the public, with a credit | FSEK Article 36(1) + Article 36(3) | As a rule a free use; the limits of the contract also apply |
| Republishing an agency story without crediting the source | Press Law Article 24(1) and FSEK Article 71(1)(3) | A heavy fine (Press Law) and imprisonment from six months to two years or a judicial fine (FSEK) |
| Publishing content whose right of republication has been reserved without the permission of the owner of the publication | Press Law Article 24(2) | A heavy fine |
| Reproducing, adapting or communicating the work to the public without the agency's written permission | FSEK Article 71(1)(1) | Imprisonment from one to five years or a judicial fine |
| Exceeding the limits of use in the subscription contract | The terms of the contract | Not a criminal offence but a breach of contract: termination, a contractual penalty, damages |
The amounts in Article 24 of the Press Law are written in the text of the statute in old Turkish lira, the currency in use in 2004; these are nominal amounts and the current figure is determined by applying the annual revaluation rate. We explain in detail how the two regimes operate together and which one applies in which situation in our article on the penalty for republishing without credit.
Photographs and video: a separate assessment
An agency service usually sends photographs and video along with the text. These do not fall within the scope of Article 36(1); they are subject to their own regimes. The approach "I quoted the text freely, so I took the photograph too" is therefore mistaken — you must have a separate basis and a separate source line for the photograph.
- Photographs having aesthetic value are works of fine art under FSEK Article 4(1)(5)
- Photographs of a technical and scientific character having no aesthetic quality come within Article 2(3)
- Even where they do not qualify as works, Article 84(3) applies Article 84 to "photographs of every kind that are not in the nature of works" as well: the person who made the fixation, or who lawfully reproduced it for commercial purposes, may prohibit a third party from reproducing or publishing it by exploiting the same means, and the unfair competition provisions apply
- News video comes within the definition of a cinematographic work by virtue of the phrase "films recording daily events" in Article 5
A checklist for the newsroom
AGENCY CONTENT USE CHECK
1) Where did the content come from?
[ ] From the service of an agency we subscribe to
[ ] From a version already published in another outlet
[ ] From the agency's publicly accessible page
2) Does our subscription cover this use?
[ ] Platform (site / print / social media / app)
[ ] Duration and archiving
[ ] Transfer to group companies or business partners
3) Does the source line carry the four elements of Article 36(3)?
[ ] Name of the agency
[ ] Name of the original source if the content was taken over
[ ] Date (and issue number in print)
[ ] The author's name, pen name or sign
4) Has the credit format required by the contract also been applied?
5) Is there a separate basis and a separate source line for photographs
and video?We established through the provisions in a separate article that crediting the source does not replace permission; with agency content that principle applies twice over, because the contractual layer is engaged as well. You can find the general decision flow for news quotation in our article on the freedom to quote news, and the regime for opinion columns and commentary arriving from an agency service in our article on quoting opinion columns.
When you connect an agency feed to your content management system, keeping the source field, the subscription reference and the record of the platform of use attached to the content lets you prove both contractual and statutory compliance afterwards. Agency feed fields can be designed this way on the news publishing software side.