Fair Use Doctrine

Intellectual Property Law, in principle, rewards the creativity of owners by granting them privileged rights on related works within the scope of copyright legislations, and prohibits reproduction, transmission, representation or use of the work in other ways, without the consent of the owner. On the other hand, the “Fair Use” doctrine, which basically finds application in Anglo-Saxon legal systems, allows limited use on copyrighted work without the permission of the right holder, thereby aiming to balance the rights arising from the ownership of the work and the public interest.

In Turkish law, the rights arising from the ownership of the work are restricted only in some specified cases that have been previously determined under the Law on Intellectual and Artistic Works (the “LIAW”). Indeed, the LIAW regulates the matter under the heading of “Limitation of Copyrights on the Work” between Articles 30 and 47. Each of these limitations, which are set with individual and public concerns, are clearly defined in the LIAW, and if a use falls within the scope of these Articles, there is an exception to copyright infringement. Frequently encountered examples of these limitations are “Freedom of Representation,” under Article 33, and “Freedom of Citation,” under Article 35.

In terms of the application abroad, the American system and European Continental system have differing approaches on the subject. When deciding whether or not use is fair by the American Courts, in accordance with the criteria under Section 107 of the American Copyright Act, taking into account the specific circumstances of each case, a four-factor assessment is carried out, including the purpose and character of the use that allegedly infringed the copyright, the nature of the copyrighted work, the amount and substantiality of the use, and the effect of the use on the current and potential market value of the work.

On the other hand, the European Continental system adopts a “3 Step Test” method system on the limitation of the rights arising from work ownership, although it does not have the same content as with the fair use doctrine. This method, which was first discussed in Bern Convention Article 9/2, in terms of the right to reproduce, was later expanded to include other economic rights of the right holder in TRIPS Article 13 and, today, many legislations, such as InfoSoc Directive 2001/29 / EC, the WIPO and WPPT refer to the “3 Step Test” method. According to the “3 Step Test” method, it is evaluated whether the restriction of the right is related to a specific situation, whether the restriction will prevent the normal use of the work by the right holder, and whether the restriction will cause unreasonable harm to the legal interests of the right holder. As to the provisions of TRIPS, signatory countries can freely determine the limitations on copyrights in their domestic law systems; however, as per Article 13, each limitation on copyright needs to be precisely determined in advance.

While the fair use principle has enough flexibility to respond to the changing needs and technological developments in today's world, through its numerus clausus nature, the “3 Step Test” method also creates a more specific and predictable environment by pre-determining the conditions in which the copyright may be limited.

Considering the current regulations in the ILAW, it should be said that Turkish copyright law adopts a system close to the “3 Step Test” method by giving priority to the owner's rights arising from the work, and does not reflect the features of the fair use principle.

As to the decisions made by the Turkish Courts on copyright infringement cases, the use of the copyrighted work should either fall under the scope of the pre-determined copyright limitation cases, or express consent should be provided by the right owner, in writing, to not be declared as a copyright infringement. However, it has recently been encountered with some opposing views in the decisions of the Court of Appeal on copyright infringement cases by referring to the decisions of the Court of Justice of the European Union (the “CJEU”) on this matter, which states that an examination by the Court should be conducted as to the nature of the use to understand whether it is fair, according to the characteristics of the established case -even if it is currently limited to the assessment of the commercial impact of the use- and in addition to the general copyright law principles. (e.g. E.2015 / 19627, K. 2018/7669; E. 2016/12740 K. 2018/7674; E. 2015/32515 K. 2018/7675 numbered decision of the 19th Criminal Chamber of Court of Appeal)

This recent approach in the decisions of the Court of Appeal is an important step in adapting the existing system to the requirements of today's digitalized world by allowing the use of the work within the limits that can be considered fair. Considering all of the above, the fair use principle, which has started to be discussed at least with its derivatives in terms of Turkish copyright law, is now expected to be on the agenda of Turkish Copyright Law in the coming years.

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