Putting a clip from another broadcast, from a film, from a music video or from a user recording into a news video is, in practice, almost always reduced to a single question: "up to how many seconds is it free?" The Law on Intellectual and Artistic Works No. 5846 ("FSEK") does not answer that question in terms of duration. The only special provision the Law devotes to the subject, FSEK Article 37, makes the freedom subject to three conditions and fences it in with two limits. Below we work the provision out from its literal text and turn it into a decision tree that can be applied at the editor's desk.

The statutory home of the clip: FSEK Article 37

The Law regulates the use of clips for news purposes in Article 37, headed "News". The article sits among the free-use cases FSEK lists "for considerations of public interest" — that is, it is an exception, not a general freedom. Its literal text reads:

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Article 37 – (Amended: 21/2/2001 - Law No. 4630, Art. 19)

Provided that it is in the nature of news reporting and does not exceed the scope of
informing, it is possible, in connection with day-to-day events, to take certain
parts of intellectual and artistic works onto devices serving the transmission of
signs, sound and/or images. The reproduction, distribution, performance or
broadcasting by means such as radio and television of the parts so taken is free.
This freedom may not be used in a manner that harms the legitimate interests of the
rights holder or in a manner contrary to the normal exploitation of the work.

Condition 1 — Being in the nature of news reporting

The first qualification in the text is that the use be "in the nature of news reporting". This requires the content in which the clip appears to be a work of journalism. The difference between a clip that serves the story and a story that is a pretext for the clip surfaces here. The Law does not require the user of the clip to be a broadcasting organisation; what it requires is that the act be in the nature of news reporting.

  • The news character is strong where the clip shows the reported event itself or corroborates it: CCTV footage of the accident, the recording of the moment a statement was made, footage shot at the scene.
  • Where the clip is inserted to dress up a scene that the news text never mentions, the news character weakens; this is typically decorative use and does not fall within Article 37.
  • Where the clip is used to produce humour, a compilation, a "best moments" reel, a reaction video or archive nostalgia, the act is not journalism but adaptation or compilation; those fall under Articles 6 and 21, not Article 37.
  • News character is not acquired by putting the word "news" in the headline. What is examined is whether the text carries an event, a date, a source and verification.

Condition 2 — Not exceeding the scope of informing

The second qualification is "not exceeding the scope of informing". This is Article 37's measuring provision and the yardstick the Law puts in place of a duration. The question is this: which part is needed in order to inform the reader? Every second that goes beyond that part falls outside the scope.

  • The measure is not the length of the clip but the information it carries. If the newsworthy sentence of a statement runs for thirty seconds, then thirty seconds is informing; the opening titles that precede the same statement are not.
  • A goal in a match is news; the whole match is not within the scope of informing. An incident at a concert is news; the whole song is not within the scope of informing.
  • Using the most striking, most valuable part — the part people seek the work out in order to watch — may exceed the scope even where it is short. The Law measures not what is "little" but what is "necessary".
  • Where several clips from the same event are strung together, the assessment is made on the total. Breaking the material into pieces does not widen the scope.

Condition 3 — Being connected to day-to-day events

The third qualification is that the use be "in connection with day-to-day events". This carries the same logic as the phrase "daily news and reports" in Article 36(1): the freedom is tied to currency. Here too the Law gives no number of days; it looks for the existence of the connection.

  • The clip must relate to an event that occurred that day or that came onto the agenda that day. Even where the event is old, the connection is established if it has produced a new development today: a court judgment, a new document, a new statement.
  • "Anniversary content", "from the archive, today" or "what happened in the past" formats can most often not be connected to a current event; in these formats the Article 37 basis is weak.
  • Republishing the same clip months later does not revive the connection to currency that existed at the first publication. A news page kept in the archive and the production of new content are assessed differently.
  • The currency of a news item and the right to remain in the archive are separate questions; for requests concerning the removal of content from the archive it is worth looking at how the right to be forgotten operates.

The two limits: legitimate interests and normal exploitation

Even where the three conditions are met, the final sentence of the article cuts the freedom off with two separate limits: the use may not be made "in a manner that harms the legitimate interests of the rights holder" or "in a manner contrary to the normal exploitation of the work". The same formula appears verbatim in FSEK Article 34(1) and Article 38(1); it is the common braking mechanism the Law attaches to its free-use provisions. The assessment is therefore not single-stage: first the three conditions, then the two limits.

  • Contrary to normal exploitation: the limit is exceeded where the clip removes the viewer's need to go to the work itself. The pivotal scene of a documentary, the chorus of a music video and the ending of a film are the typical examples.
  • Harm to legitimate interests: a use that in fact eliminates the income the rights holder would obtain by licensing that footage falls within this limit. Where the footage is already distributed for a fee, offering the same footage free of charge under the guise of news is a direct harm to that interest.
  • A clip standing in for an entire broadcast, advertising revenue being generated off the clip, and the clip being packaged as a separate piece of content all press on these two limits together.
  • These limits do not look for fault. Having acted in good faith does not, under Article 66(3), bar an action for the removal of the infringement.

"How many seconds may I use?" — the Law contains no such number

None of the thresholds circulating in the industry — "10 seconds", "30 seconds", "ten per cent of the work" — has any counterpart in Law No. 5846. The text of FSEK Article 37 contains no seconds, no minutes, no percentage and no frame count. The Law builds its measure out of qualitative concepts such as "the scope of informing" and "normal exploitation"; it has laid down no quantitative threshold. The practical consequence is this: record the justification, not the duration.

  • A seconds limit appearing in the internal rules of a platform, an agency or a publishing group is that organisation's contractual policy — it is not a limit set by the Law.
  • The four-factor "fair use" test of foreign legal systems does not apply directly in Turkish law; FSEK's own list of exceptions is closed, and Article 37 is one item on that list.
  • Being short is not a defence in itself; conversely, being long is not an infringement in itself. What is decisive is whether the part taken was necessary in order to tell the story.
  • You may set an upper limit in your own corporate policy; but do not write it down as "the limit set by the Law". Mixing an internal rule and a statutory provision in the same document weakens the defence if an infringement is alleged.

The difference between Articles 35, 36 and 37

All three articles are cited under the heading of "use without permission", but their scopes differ. Relying on the wrong article loses the defence before it begins.

ProvisionWhat it coversIts conditionAttribution
Art. 35 — Freedom of quotationTaking sentences and passages from a disclosed work into an independent scientific or literary work; taking parts of a composition in the nature of themes, motifs or passages into an independent musical work; placing a work of fine art into a scientific work; display in lessons and conferencesFalling within one of the four limited cases listed in the article"The quotation must be made in such a way that it is apparent"; in scientific works the place it was taken from is additionally stated
Art. 36 — Newspaper contentDaily news and reports disseminated to the public by the press or by radio (para. 1); articles and columns in newspapers and magazines on day-to-day social, political or economic questions (para. 2)For para. 2, that the right of quotation has not been expressly reserved; if it has been reserved, only an abridged press summaryPara. 3 is explicit: the name of the newspaper, magazine and agency, the original source if the item was taken over, the date and issue number, and the author's name or pen name
Art. 37 — NewsTaking certain parts of intellectual and artistic works onto devices serving the transmission of signs, sound and/or images, and broadcasting themNews character + not exceeding the scope of informing + connection to a day-to-day event; plus the two limitsThere is no express attribution sentence in the text of the article

The practical distinction that can be read out of the texts is this: Article 36 looks to the type of the content (news, reports, articles on day-to-day questions), whereas Article 37 looks to the purpose and the medium of the use (a news purpose + a device serving the transmission of sound and images). If you are quoting a newspaper report, your route runs through Article 36; for the detail of that see the article setting out the limits of quoting news from another website. If you are taking footage from a film, a music video or a broadcast, your basis is Article 37.

Which rights the video you clip from triggers

Because Article 37 is an exception, when its conditions are not met what remains is the general regime of the Law. Putting a clip into a news video engages not one right but several economic rights at once. Under FSEK Article 20 economic rights are not dependent on one another; exercising one does not give permission for another.

  • Art. 5 — Cinematographic works: sequences of moving images are cinematographic works irrespective of the material on which they are fixed, "including films that record day-to-day events". Footage of an incident shot on a phone may also fall within this definition.
  • Art. 22 — Reproduction: reproduction of the work "in any form or by any method, in whole or in part, directly or indirectly, temporarily or permanently" is the exclusive right of the author. Downloading the clip onto the editing computer is reproduction, and so is uploading it to a server.
  • Art. 25 — Communication to the public: broadcasting by devices serving the transmission of signs, sound and/or images, "including digital transmission", and providing access to the work "at a place and time chosen by natural persons", belong to the author. Putting a video on a news website is precisely that.
  • Art. 52 — Written form: contracts and dispositions relating to economic rights must be in writing, and the rights that are their subject must be shown individually. A message saying "you can use it" does not satisfy Article 52, because it does not show which right has been transferred.

The second layer: the broadcasting organisation's related right

If you are taking the clip from a television broadcast or from a production, there is a second layer of rights alongside the author's. FSEK Article 80 governs the rights related to the author's rights and grants separate powers to radio and television organisations and to film producers.

  • Under Article 80/1-C, radio and television organisations have the exclusive right to "authorise or prohibit the simultaneous transmission, deferred transmission, retransmission and distribution by satellite or cable of their broadcasts by other broadcasting organisations".
  • Under the same subparagraph, and save for private uses, authorising or prohibiting "the reproduction and distribution of the broadcasts by any technique or method, directly or indirectly" also belongs to the organisation.
  • Again under Article 80/1-C, the right to "authorise the communication to the public of fixed broadcasts by making the broadcasts accessible at a place and time chosen by natural persons" also rests with the organisation — which means that putting a screen recording on your website engages this right directly.
  • Article 80 separately lists the exclusive powers of the producer who carries out the first fixation of films over reproduction, distribution and communication to the public.
  • The text of Article 80 expressly contains the rule that "the authorisations given by holders of neighbouring rights and by producers who carry out the first fixation of films must be in writing".

The text of Article 80 also lists the cases in which written authorisation is not required. One of them is "the performance and public presentation of intellectual and artistic works for purposes of public order, education and teaching, scientific research or news, and without the pursuit of profit". In the text the exception is tied to the qualification that no profit be pursued; a commercial news website must reckon from the outset with the fact that this qualification will become contestable for a page that generates advertising revenue.

Attribution: Article 37 is silent, Article 71 is not

There is no express attribution sentence in the text of Article 37. The articles to which Article 67(3) attaches the sanction for failing to give a source are 32, 33, 34, 35, 36, 39 and 40 — Article 37 is not listed among them. On the criminal side, by contrast, Article 71(1)(3) punishes, without distinguishing between articles, "a person who quotes from a work without giving the source" with imprisonment from six months to two years or a judicial fine; and Article 71(1)(5) meets insufficient, incorrect or misleading attribution with imprisonment of up to six months. The practical conclusion is plain: even where you rely on Article 37, write the source. We dealt with how to write it in the article setting out the forms of attribution in news reporting.

An editor's decision tree

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CLIP DECISION TREE — FSEK ARTICLE 37
(based solely on the conditions and limits in the text of the article)

[1] Is the content the clip will go into news?
    NO  -> No Article 37. Permission required (Arts. 20-25; under Art. 52
           the permission must be IN WRITING).
    YES -> [2]

[2] Is the clip connected to an event of today?
    (The event happened today OR produced a new development today)
    NO  -> No Article 37. Archive/compilation regime. Permission required.
    YES -> [3]

[3] Is the clip the part that is NECESSARY to tell the story?
    Test: if this clip is removed, does the story become unintelligible?
    NO (decorative/atmospheric) -> No Article 37. Permission required.
    YES -> [4]

[4] Is the clip the most valuable / most sought-after part of the work?
    (the chorus, the closing scene, the pivotal part of a documentary)
    YES -> risk of "contrary to normal exploitation". Shorten or obtain permission.
    NO  -> [5]

[5] Does the clip in fact substitute for the income the rights holder
    earns from that footage? (is there a licensing market for the footage)
    YES -> risk of "harm to legitimate interests". Obtain permission.
    NO  -> [6]

[6] Has the source been written?
    (broadcasting organisation / production title / person who filmed + date)
    NO  -> risk under Art. 71(1)(3). DO NOT PUBLISH, add the source.
    YES -> [7]

[7] Was the clip taken from a TV broadcast or from a production?
    YES -> the Article 80 related-rights layer applies as well. If the use
           pursues profit, consider the written-permission route.
    NO  -> May be published.

IN EVERY CASE, RECORD ON FILE:
  - the address of the source and the date of access
  - the start and end second of the clip
  - the justification for this length (one sentence)
  - the name of the editor who decided and the time of the decision

What to put on file before publishing the clip

  • The full address of the source, the broadcasting organisation or the person who filmed it, and the date and time of access.
  • The start and end second of the clip within the original video, and its total length.
  • A one-sentence justification of why this length was necessary — this is the core of the "scope of informing" defence.
  • The date of the current event to which the clip is connected, and its counterpart in the news text.
  • How the source is shown on screen and in the text: overlay caption, lower third, credit line.
  • Any correspondence granting permission, and the list of the economic rights the permission covers (shown individually, as Article 52 requires).
  • The name of the editor who took the decision and the time of the decision.

If you face an infringement claim, we dealt with the monetary dimension of the claim and how it is calculated in our article on how compensation is calculated in copyright infringement, and the separate licensing question that arises on the audio side of a clip in our article on whether a licence is required to use music in news content.