IMPACT OF SOCIAL MEDIA AND LEGAL SANCTIONS THAT CAN BE APPLIED IN COPYRIGHT LAW   2 October 2020

1. What is Copyright?

Copyright refers to the legally provided rights on products produced by a person with all kinds of intellectual efforts. Under Turkish law, copyrights are protected by the Law on Intellectual and Artistic Works ("LIAW"). The purpose of the LIAW provisions is to determine and protect the moral and financial rights of the authors on works of science and literature, music, fine arts or cinema, and to regulate the conditions of benefiting from these products, and to ascertain sanctions in case of use contrary to the stipulated rules and procedures.

According to the LIAW provisions; the work must have the property of owner. In this sense, the intellectual effort of the work should be determined and this effort should be above the general and it is important that the work is original, not a copy.  Also the intellectual product being included in one of the types of works stipulated in the LIAW; must be in one of the main titles of science and literature, music, fine arts or cinema. Furthermore, the intellectual work must be in a form that can be perceived by third parties and in a form suitable for disposal. Every work with the mentioned qualities is protected with the rights regulated in the LIAW. These rights appear as financial and moral rights. Moral rights are the rights that are directly related to the personality of the owner of the work and enable the owner of the work to maintain control over the work. Financial rights are stated as rights that enable the owner to obtain economic benefits from work.

2. Social Media Effects on Copyright

 With today's developing technology, social media has enabled users to share thoughts, ideas or artistic products belonging to themselves or others by not being a consumer. In this context, social media allows users; be a creator, publisher, distributor and owner of a work, if it meets the work conditions specified in the LIAW. First of all, the effect of social media on copyrights has been revealed in the matter of whether social media sites benefit from copyright protection and If they benefit, whether they meet the conditions of being a work. In addition, it is important whether the users have work ownership qualities in terms of their shares on social media. Because, in accordance with the LIAW, various protections are provided to the owners of the work, and legal and criminal responsibilities may arise due to the sharing of the work.

User actions directly related to copyright law on social media can appear in the form of;

• Sharing of users' own intellectual products that have their own property on social media
• Users to create and share their own works by using another person's work

• User's direct sharing of another person's work

When the above-mentioned actions of users on social media are examined within the scope of the LIAW, they can lead to infringement of rights. Most of the content shared on social media are derivative works in accordance with the LIAW provisions. In this respect, the derivative work is defined as the products of ideas and art, which are created by making use of another work and not detached with respect to this work and containing the property of the person who created the derivative work. In accordance with the provisions of the LIAW, permission must be obtained from the owner within the scope of the right of adaptation in order to share the derivative work lawfully. Thus, reproducing the work shared by users, making it available to the public, and creating a derivative work, on it is a infringement of the copyright if the owner does not have permission. Because these actions are within the scope of the financial rights of the owner and the right to allow these actions to be performed belongs exclusively to the owner of the work. Unless permission is obtained from the owner of the work in accordance with the rules of the LIAW, reproduction, processing and public transmission, in other words, sharing any work or a part of the work will cause copyright infringement.

If the content shared by someone else is considered as a work within the scope of the FSEK, the users' dissemination of this content on social media is both reproduction and public transmission according to the LIAW. For this reason, it is seen that users must have written permission to perform such actions. When a work is shared on social media, specifying the name of the owner of the work or the source does not make this sharing legal. In order not to infringement of rights, the person sharing must have the written permission of the owner of the work. Therefore, the LIAW provisions are not easily applicable and cannot adapt to the dynamics of social media due to this stipulated written permission.

3. Sanctions That May Be Applied As A Result Of Infringement Of Copyright

 Actions such as, unauthorized reproduction, modification, distribution, public transmission of a copyrighted work; naming someone else's work as if it were his/her own; giving incomplete, misleading or deceptive information regarding the work and the copyright of the work; transmitting, renting, selling and displaying the work without permission result in infringement of copyright.

In case of infringement of the financial and moral rights of the owner, the LIAW provides for the right of compensation for the owner of the work. According to article 70 of the LIAW, in case of infringement of his moral rights, the owner of the work can file a non-pecuniary damages. If there is a tangible loss for the owner of the work, within the scope of the regulations on tort provisions, pecuniary damages can also be filed. In case of infringement of the financial rights of the owner of the work, the right owner can demand compensation for the damage the owner has incurred and the profit the owner has been deprived in accordance with the provisions of tort (LIAW art. 70/2). In terms of this compensation, it is also legally possible for the owner of the work to claim intangible loss. On the other hand, the owner of the work whose rights have been infringement has the right to request the profit obtained due to the act of infringement to be given to the owner, regardless of the owner’s claims for pecuniary and non-pecuniary damages and whether there is a loss or not. (LIAW art. 70/3).

Furthermore, in accordance with the LIAW article 68; The owner of the right to work has the right to demand from the infringers at most three times the price they would pay if a contract is made with the right owner regarding the use of the rights in case of unauthorized reproduction, dissemination or public transmission. In terms of this request, it is important not to seek the condition that the infringer is at fault. In addition to the legal responsibility of the infringer, criminal responsibility is also regulated under the LIAW. Accordingly, the LIAW article 71 determines which actions the right holder can file a criminal lawsuit and the penalties for these actions.