A Glance at the Concept of Plagiarism

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Although plagiarism is not clearly defined in Law No. 5846 on Intellectual and Artistic Works (LIAW), it is one of the most common acts of infringement. Plagiarism, which is defined as “pilferage” by the Turkish Language Association under the law on intellectual and artistic works, is used 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, “Freedom of quotation” is clearly defined under Article 35 of LIAW. In this context, it is theoretically possible to say that any unauthorised use of someone else’s work that exceeds the freedom of citation is plagiarism. But this definition does not always lead to correct results in practice. 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.

On the other hand, it is known that mostly in terms of academic studies, plagiarism checker tools are used to compare two works and detect whether there is plagiarism. However, such tools would not work for every category of intellectual and artistic works because such tools scan the texts of the works and prepare a comparison report based on the scanning. 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 Court of Cassation has established very guiding jurisprudence on plagiarism. We believe that in the decision of The General Assembly of the Civil Court of Cassation (GACoC) dated 07.02.2019 and numbered 2017/63 E., 2019/86 K., a formula was determined for plagiarism with reference also to the doctrine is as follows: “…when examining plagiarism between two works; it is necessary to investigate whether the later work was created upon the former work; If there is a similarity between the works, by comparing the works a whole whether the characteristics of the author of the first work are transferred to the next work, and finally, whether the determined similarity remains within the scope of freedom of citation or inspiration as specified in Article 35 of FSEK.”

In the same decision, GACoC also emphasised that similarity should be considered a legitimate use if it is related to common and anonymous elements such as abstract ideas, subjects, methods that can be found in works produced in the same field, or only if it is at the level of inspiration from the previous work.

As a matter of fact, in the decision of the 11th Civil Chamber of the Court of Cassation dated 14.11.2018 and numbered 2017/425 E. 2018/7072 K., the Court states that “although it was determined that some of the choreographies and musical compositions are used in the defendant’s choreography, there are also original choreographies in the defendant’s performance, all similarities are not in the form of imitation or copying from the plaintiff’s work, these can be considered as inspiration from the plaintiff’s work and this situation does not infringe on the rights of the plaintiff arising from work.”

However, using anonymous and widely known elements does not mean that they would never create plagiarism because the important thing here is whether the author adds his original expression to these known elements. As a matter of fact, the decision of the 11th Civil Chamber of the Court of Cassation dated 28.06.2013 and numbered 2011/12752 E., 2013/13684 K. is instructive in this sense. In the decision above, the Court stated that “Although the Berdel stories are common and anonymous, the names, places, and some situations have been changed between the GÜVERCİN story of the plaintiff and the SILA story produced by the defendant, but there is a similarity between the main characters, story development, mathematics, studies and even some details. It was concluded that the SILA series was processed and extended and turned into a TV series based on the movie story called GÜVERCİN and that these determinations were detailed comparatively in the supplementary report, it is not necessary to take the work exactly for plagiarism, and the basic elements that turned into concrete expressions in the story of the plaintiff mentioned in the report, the defendant’s production is unauthorised in the series. It has been decided that such use constitutes an infringement of the plaintiff’s copyright on the work.”

As a result, 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.

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