"Plagiarism" is not clearly defined in Law No. 5846 on Intellectual and Artistic Works ("LIAW"). Plagiarism, which is defined by the Turkish Language Association as "pilferage," is used in the context of intellectual and artistic works law to mean "to present someone else's work as your own, taking a piece from someone else's work without citing the source."
While there is no definition for plagiarism under LIAW, instances of "freedom of quotation" are clearly defined under Article 35. In this context, it is theoretically possible to say that any unauthorized use of someone else's work that exceeds the freedom of citation as plagiarism, this definition does not always lead to correct results in practice. This is because "inspiration" is free within the scope of intellectual and artistic works law, the evaluation of whether a work's unfair use of someone else's work is plagiarism or inspiration should be investigated separately for each concrete case. When evaluating plagiarism between two works, it is necessary to evaluate the works as a whole and evaluate whether the author's original expression, which adds originality to work, is used without permission for each concrete case.
In light of this information, a recent plagiarism decision rendered by the Anatolian Intellectual and Industrial Property Rights Court in the case brought by Mine Kırıkkanat against Elif Şafak has sparked significant controversy and discussion in both literary and legal circles.
In the lawsuit, Kırıkkanat alleged that the content of Şafak's work "Bit Palas" (2002) was plagiarized from her work "Sinek Sarayı" (1990), and the Court, after determining that Kırıkkanat's rights arising from ownership of the work were infringed upon, ordered the prevention of infringement, and awarded both material and moral compensation in favor of the plaintiff. In response to the verdict, Elif Şafak announced her intention to appeal the decision as well as filing a lawsuit for material and moral compensation against Mine Kırıkkanat.
Despite the report underlying the judgment stating that "there is no copying of any part or page and paragraph of the plaintiff's book by the defendant, in other words, there is no sentence-by-sentence or page-by-page quotation," it is noted that certain concepts were found to be similar, leading to a conclusion of "5% plagiarism." However, upon examination of the prominent concepts and keywords in the report, it is observed that they consist of facts such as the presence of characters engaged in architecture in both works, the portrayal of minorities in a positive light while addressing religions and beliefs, the adorned motif of the apartment in both books with bird motifs, the architectural texture of constructions and their detrimental effect on the past, the presence of a janitorial residence consisting of a father, mother, and son in both books, the inclusion of physically disabled characters, the depiction of transvestite or homosexual characters, the use of famous street names in Beyoğlu, the inclusion of garbage, foul odors, and the use of cigars as harmful habits in environmental descriptions, the portrayal of terrorism incidents, and the negative emotional states of the main characters.
The discussion arises as to whether these concepts, considering the realities of Turkey and particularly Istanbul, are sufficient to establish the existence of plagiarism. Indeed, not every similarity leads to plagiarism; the presence of plagiarism requires the identification of a similarity that surpasses mere ordinary ideas and coincidentally transcends the elements of the work that bear the characteristics of its author.
The report by the experts evokes the methodology used by plagiarism checker tools to determine whether there is plagiarism in a text, rather than a comparison of two literary works. In such tools, a scan is conducted based on the words and sentences used in the text, and a comparison report is prepared accordingly. However, especially in terms of works such as scenarios and stories, the author's original idea, for instance, about the characters or the plot etc., created by the author may not have been expressed with precisely the exact words. For this reason, comparing the texts in determining the existence of plagiarism will not give the correct result.
The aforementioned observations in the report have raised concerns, especially regarding the selection of experts in cases related to intellectual property rights. For example, in a statement published on the website of the defendant publisher, Doğan Kitap, it was pointed out that the person who prepared the aforementioned report was "someone who writes and publishes non-literary, test books", and their selection as an expert by the Court despite this was argued to have contributed to the deficiencies in the report that formed the basis of the final judgment.
In the opinions submitted by many authors and presented to the court by the defendants, authors argued that upon examining both works, similarities between the works could not go beyond ordinary inspirations. Among these authors, Gaye Boralıoğlu emphasized that although both works are set in Beyoğlu, Kırıkkanat primarily highlights the local characteristics of Beyoğlu, draws the district's picture through characters, and this leads to a distinction between the books due to the impressionistic-realistic narrative style. Writer İsmail Güzelsoy, in his examination, stated, "There is neither a commonality nor any resemblance in any of the components of the novel such as character schema, setting, plot, narrative style, narrative flow, conflict characteristic, time frame, or dramatic depth that would indicate plagiarism from one work to another."1
The common denominator in these statements is the authors' justified concerns that the existence of thematic similarities between two works may lead to an incorrect assertion that a work is not original, particularly if there are no linguistic, structural, or formal similarities. Indeed, the broad interpretation of the concept of plagiarism by courts in cases based on intellectual property rights may suppress the production of creative works and encourage the use of plagiarism lawsuits as a leverage in essentially personal disputes. This situation is significant both legally and culturally, as it may hinder the recognition of the rights of truly injured intellectual property owners by the courts or the public.
Footnote
1. For all of the statements, see: http://okumakiyigelir.com/yazarlar-mine-kirikkanat-ve-elif-safak-arasinda-hicbir-benzerlik-yoktur/
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