As the digital landscape continues to evolve at an unprecedented pace, facilitating easier access to information, copyright infringement has emerged as a pressing concern. The internet, with its vast array of platforms, including social media and websites, has provided fertile ground for the unauthorized reproduction and distribution of copyrighted works. This has placed hosting providers, entities that make digital content accessible online, at the center of intense legal debates. The extent of liability for hosting providers regarding copyright infringements committed by their users is a complex issue with significant implications for both copyright holders and internet users.
Under the Turkish Law No 5846 on Intellectual and Artistic Works ("Law"), the processing, reproduction, publication or representation of a work by means of any image, sound or signal transmission device without the authorization of the author constitutes a violation of the rights arising from the ownership of the work. Due to such infringements, particularly unauthorized sharing on the internet and reproduction and publication without the author's permission, lawsuits seeking substantial compensation continue to be filed in the judicial authorities.
Definition of "Work" and Author's Rights Under the Law
In the Law, the term 'work' is defined as any product of the mind created by the author's own intellectual effort which is original and falls within the categories of literature, music, fine arts, or cinematography.
Articles 14, 15, 16 and 17 of the Law regulate moral rights of an author which include
- the right to disclose the work to the public,
- the authority to designate the name,
- the protection of the work's integrity, and
- the author's rights concerning the owner and possessor.
As these rights are inherently tied to the author, they cannot be transferred or licensed. Waivers of these rights are deemed void, as moral rights are considered as personal rights under Turkish law.
In contrast, Articles 21, 22, 23, 24, and 25 of the Law regulate the economic rights of an author which encompass the right to
- adaptation,
- reproduction,
- distribution,
- performance, and
- communication to public.
These economic rights can be transferred, licensed and waived.
To prevent these violations, the artist's rights over their works must be meticulously respected. Explicit authorization from the artist is essential for any use clearly outlining the purpose, conditions and manner of use. Any modification or use that harms the artist's honor or reputation constitutes a violation of moral rights. For instance, altering the artist's work without consent or presenting it in a context that contradicts the artist's views or personality would breach these rights.
Protecting the integrity of the work is also of paramount importance. Any removal, addition or alteration of any part of the work violates the artist's moral rights. Therefore, the original form of the work must be preserved and the artist's creative vision must be respected. The use of the work should accurately reflect the artist's name, the context in which the work was created and the nature of the work. This approach safeguards not only the artist's material rights but also preserves the moral value of the work.
Turkish Legislation Governing Hosting Providers
Hosting providers in Türkiye are governed by distinct regulations. The Law No. 5651 on Regulation of Broadcasts Via Internet and Combating Crimes Committed by Means of Such Publications ("Internet Law") is a significant piece of legislation in Türkiye. Enacted to address the legal challenges arising from the rapid development and widespread use of the internet, this law aims to regulate online content and combat cybercrime.
The primary objective of the Internet Law is to strike a balance between safeguarding freedom of expression on the internet, while preventing the dissemination of unlawful content, thereby ensuring the safety of internet users.
Responsibilities Imposed on Hosting Providers
Under the Internet Law, a "hosting provider" is defined as a natural or legal person that provides or operates systems for storing and delivering services and content.
- Licensing Requirement:
Hosting providers must obtain an activity certificate before commencing operations as mandated by relevant legal regulations. Operating without this certificate will result in severe administrative fines and sanctions. Therefore, it is crucial for hosting providers to comply with regulatory requirements before starting their activities.
- Notification Obligation:
Hosting providers must provide up-to-date and complete contact information to users and display it on their websites. Failure to do so will result in administrative fines.
- Content Removal Obligation:
Under the Internet Law, hosting providers are not required to proactively monitor or investigate the content they host for legality. However, they are obligated to remove unlawful content upon notification from judicial authorities, the Presidency of the Republic, or the President of the Information and Communications Technologies Authority, or individuals reporting that their rights have been violated. Failure to comply with removal requests may result in administrative fines.
- Traffic Data Retention Obligation:
Hosting providers are required by law to store traffic data, including IP addresses, for six months, while ensuring the confidentiality of this data during the retention period.
- Declaration Obligation:
Hosting providers must comply with requests for information from courts, judicial authorities, the Ministry of Culture and Tourism or the Presidency regarding the content and related matters. They are also required to implement necessary measures as directed by judicial authorities.
Legal Proceedings: From Initial Complaint to Removal, Compensation and Fines
The legal liability of hosting providers for copyright infringement begins with the notification of infringing content on their platform. This notification may be submitted by the author through various means, including sending a notice to the hosting provider, an e-mail, or an application via the copyright infringement notification section, if available. If a hosting provider fails to investigate the legality of the content and remove infringing material upon notification, they may be held liable for the infringement and required to provide compensation.
To address this issue, the affected party must first contact the hosting provider and request the cessation of the infringement within three days. If the infringement continues, the affected party can then seek intervention from the public prosecutor to direct the service provider to cease providing services to the hosting provider responsible for the infringement, also within three days.
The "Notice and Takedown" system, a widely adopted and efficient method in many countries, has also been adopted in Turkish law. Hosting providers must act on decisions to remove content or block access as ordered by judges or courts. If urgent action is required, the Public Prosecutor can issue an interim decision, which must be approved by a judge within twenty-four hours. If the judge does not approve the measure within this timeframe, it will be lifted.
Addressing the infringement alone does not cover the material and moral damages suffered by the author. Therefore, lawsuits for pecuniary and non-pecuniary damages may also be filed alongside the cessation of the infringement. Furthermore, according to established case law from the Court of Cassation, claims for unfair competition under Turkish Commercial Code No. 6102 may also be pursued if applicable.
Failure to fulfil these obligations may result in administrative fines, access blocking, and responsibilities for compensation and reinstatement of affected parties.
Can a Hosting Provider Benefit from Copyright Limitations?
Certain limitations to copyright protection exist, primarily to protect public interest and ensure the overriding public interest. These limitations can be expanded to address concerns such as public interest, public order, public morality and private interest.
The question of whether these circumstances eliminate copyright is open to debate, and there is a diversity of opinions within the jurisprudence. Nevertheless, a review of case law indicates a particular pattern in the judgments. Compensation is more likely to be awarded in cases involving the infringement of the copyright owner's financial rights, such as reproduction and dissemination. On the other hand, when a work holds public value or relates to social and historical events, it may be evaluated within the scope of copyright limitations based on public interest. Therefore, hosting providers may invoke copyright limitations as a defense against infringement claims.
Conclusion
The intricate relationship between hosting providers and copyright owners in the digital age is marked by complex legal challenges. While hosting providers are generally not liable for the content hosted on their platforms, they are liable for the infringement from notification. Additionally, they must remove the infringing content upon the relevant authority's decision. The interplay between copyright law, internet law, and the broader legal framework creates a dynamic environment where the rights of copyright holders and the operational needs of hosting providers often intersect.
The potential application of copyright limitations as a defense by hosting providers adds another layer of complexity to this landscape. While these limitations can offer some protection, their scope and applicability vary depending on specific circumstances and legal interpretations. Ultimately, achieving a balance between protecting intellectual property rights and facilitating seamless content hosting requires ongoing legal and technological advancements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.