Criminal Liability for Violation of Copyright on Social Networks

Sosyal Ağlarda Telif Hakkının İhlali Halinde Ceza Sorumluluğu

Murat BALCI, Kerim ÇAKIR

One of the most common and criminal acts on social networks is copyright infringement regarding intellectual property. Reproduction and distribution of copyrighted works over the internet is faster and easier. If a video, picture, photo or original article qualifying as a (piece of) work is shared on social networks without the permission of the author or without attribution, copyright is violated according to intellectual property law. The increasing importance of social networks has led to an increase in copyright infringements in these channels. Since it is very easy to publish and reproduce the work on the internet, Article 71 of the Law on Intellectual and Artistic Works numbered 5846 (“FSEK”) is of great importance in the fight against copyright infringements committed on social networks. This Article regulates the unauthorized use of copyrighted works as a crime and provides for sanctions. Except as permitted by law, a person who reproduces, distributes or makes a work public without the consent of the right holder shall be punished. The norms under Article 71 of FSEK on the protection of copyright belong to the substantive part of criminal law. Although social networks have their own sanctions and preventive measures for copyright infringements, the author must be protected by means of criminal law. In this study, the acts of duplicating, distribution, publicizing, processing, creating a work and giving a link on social networks will be evaluated in accordance with FSEK within the scope of copyright and how to determine the criminal responsibility in case of infringement will be explained. In addition, information will be given about how works benefiting from copyright protection are subject to infringements on social networks, under what conditions these infringements constitute a crime, what kind of legal remedies can be resorted to by the author, how social network service providers make regulations on this issue and the precautions to be taken regarding infringements.

Copyright, Work, Social Network, Internet Environment, Content Sharing.

Sosyal ağlarda sıklıkla rastlanan ve suç teşkil eden fiillerden biri de fikri mülkiyete ilişkin telif hakkı ihlalleridir. Telif hakkıyla korunan eserlerin internet üzerinden çoğaltılması ve dağıtılması daha hızlı ve daha kolaydır. Eser niteliğini haiz bir video, resim, fotoğraf veya özgün bir yazı sosyal ağlarda eser sahibinin izni olmaksızın ya da esere atıf yapılmaksızın paylaşılırsa fikri mülkiyet hukukuna göre telif hakkı ihlal edilmiş olur. Sosyal ağların öneminin her geçen gün artması bu mecralarda telif hakkı ihlallerinin de artmasına neden olmuştur. İnternet ortamında eserin yayımlanması ve çoğaltılması oldukça kolay olduğundan FSEK’in 71’inci maddesi sosyal ağlarda işlenen telif hakkı ihlalleriyle mücadelede büyük önem taşımaktadır. Madde, telif hakkıyla korunan eserlerin yetkisiz kullanımını suç olarak düzenlemiş ve yaptırım öngörmüştür. Kanunların izin verdiği haller dışında, hak sahibinin rızası olmaksızın bir eseri çoğaltan, dağıtan veya alenileştiren kişi cezalandırılır. Telif hakkının korunmasıyla ilgili FSEK’in 71’inci maddesindeki normlar ceza hukukunun maddi kısmına aittir. Sosyal ağların, telif hakkı ihlallerine yönelik kendi yaptırım ve engellemeleri söz konusu olsa da eser sahibinin ceza hukuku marifetiyle korunması gerekir. Çalışmada, sosyal ağlarda bir eseri çoğaltma, yayma, kamuya iletme, işleme eser oluşturma ve link verme şeklindeki fiiller, telif hakkı kapsamında 5846 sayılı Fikir ve Sanat Eserleri Kanunu’na göre değerlendirilecek ve ihlal halinde ceza sorumluluğunun nasıl tespit edileceği açıklanacaktır. Ayrıca telif hakkı korumasından faydalanan eserlerin sosyal ağlarda nasıl ihlale konu olduğu, bu ihlallerin hangi şartlar altında suç teşkil ettiği, eser sahibinin ne tür hukuki yollara başvurabileceği, sosyal ağ hizmet sağlayıcılarının bu konuda nasıl düzenleme yaptığı ve ihlallerle ilgili alınması gereken önlemler konusunda bilgi verilecektir.

Telif Hakkı, Eser, Sosyal Ağ, İnternet Ortamı, İçerik Paylaşma.

I. INTRODUCTION

The increase of the number of users on social networks has also increased the infringements of copyright. The structure and operation of social networks cause a lot of copyright infringements. Copyright infringements that occur in the way of illegal reproduction or distribution of content in the form of text, photos or videos on social networks are protected under FSEK.

Copyrighted works are offered free of charge to other users on the internet, by-passing copy protection systems via file sharing systems through social networks. It has become possible to copy and distribute applications such as animation, graphics, text and sound without permission, to use digital pay-TV without payment, and to record television programs via a computer or other digital recording devices.¹

International conventions have an important place in the fight against copyright infringement. The “Copyright Treaty”, which was opened for signature by WIPO (World Intellectual Property Organization) in 1996, entered into force in 2002.² The countries that are party to the convention are under the obligation to prevent the infringements caused by the technology that they use in order to protect the rights of the authors.³

Within the scope of the Copyright Treaty, computer programs and databases were defined; and it has become obligatory to regulate the necessary sanctions against the ineffectiveness of the technological methods used by the authors.⁴ Under the Copyright Treaty, countries were called to update the legislation on intellectual property, especially copyright, and to expand the legislation including digital areas. It is aimed to prevent the infringement of the rights of the author by using digital technologies.⁵

In the European Convention on Cybercrime,⁶ under the title of offences related to the infringements of copyright and related rights, Article 10 regulates offences related to the infringements of copyright and related rights, copying, distribution and reproduction of copyrighted works.⁷

II. COPYRIGHT AND PROTECTION OF THIS RIGHT

Copyright denotes all rights arising from an intellectual or artistic work belonging to the person who created that work. In other words, they are the legal rights on the products that a person creates with all kinds of his/her intellectual labour.⁸

The person who creates an original work recorded on physical environment directly owns the copyright of that work. The copyrighted work according to FSEK refers to any intellectual or artistic product bearing the characteristic of its author, which is deemed a scientific and literary or musical work or work of fine arts or cinematographic work (see FSEK m. 1/B-a). In this context, a movie, video, picture, original article or song on social networks is considered as a work. In the third part of the FSEK titled “Intellectual Rights”, Article 13 regarding the rights of the author regulates that the copyright of the owner of the work will be protected by stating that the economic and moral interests of authors in their intellectual and artistic works shall be protected under this Law. The rights and authorities granted to authors shall extend over the entire work as well as its parts.

In Article 71 of FSEK regarding the rights arising from the work and the ownership of the work, the moral and financial rights of the owner arising from the intellectual and artistic work, and under Article 80 regarding the infringement of the rights related to the rights of the owner of the work are regulated as a crime and protected by criminal law. Files of movies or music works have become transferable between internet users via peer-to-peer networks. However, file sharing becomes a legal transaction only when the files are published or authorized under a free license.⁹

Only the copyright owner determines whether or not third parties have permission to use the work. Audio-visual works such as TV programmes, films and online videos, sound recordings and musical compositions, written works such as lectures, articles, books and musical compositions, visual works such as pictures, posters and advertisements, video games and computer software, plays and musical drama works are protected under copyright. Ideas, facts and processes are not copyrighted. For a work to be suitable for copyright protection, it must be a creative product and must be recorded on a physical environment.¹⁰

In the event that the rights and authorities of the author granted within the scope of FSEK are used by someone else, it constitutes a violation of the copyrights and criminal and legal liability arises. Article 71 of FSEK regulates the infringement of moral, financial or related rights regarding intellectual and artistic works as a crime. According to Article 71 of FSEK; any person who, by infringing the moral, economic and related rights regarding intellectual and artistic works protected under this Law;

1. Adapts, performs, reproduces, changes, distributes, communicates to the public by devices enabling the transmission of signs, sounds or images or publishes a work, performance, phonogram or production without written permission of right holders or puts up for sale, sells, distributes by renting or lending or in any other way, buys for commercial purposes, imports or exports, possesses or stores for non-private use any works adapted or reproduced unlawfully, shall be sentenced to imprisonment from one year to five years or a judicial fine.

2. Gives a title to another person’s work as his own work shall be sentenced to imprisonment from six months to two years or a judicial fine. Where the offence is committed by distributing or publishing, the upper limit of the penalty of imprisonment shall be five years and no judicial fine may be imposed.

3. Cites from a work without referring to the source shall be sentenced to imprisonment from six months to two years or a judicial fine.

4. Makes a declaration to the public without permission of the right holders concerning the content of a work which has not yet been made public shall be sentenced to imprisonment up to six months.

5. Gives a reference regarding a work in a wrong, incomplete or misleading way shall be sentenced to imprisonment up to six months.

6. Reproduces, distributes, publishes or broadcasts a work, performance, phonogram or a production by using the name of a well-known other person shall be sentenced to imprisonment from three months to one year or a judicial fine.