Liability of the Hosting Providers for Copyright Infringement

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One of the most violated rights on the internet is copyright, and nowadays, works such as music, movies and cartoons are published by third parties on various websites, social media accounts, video watching and file-sharing platforms without the owners’ permission. In fact, recently, the unauthorised sharing of cartoons by famous cartoonists on specific internet sites and the legal actions initiated by the authors of these works have created quite a stir; and the issue of legal and criminal liability of hosting providers arising from copyright violations on the internet was brought up.

Obligations and liabilities of hosting providers in our country are regulated in Law No. 5651 on the Publications on The Internet and Combating Crimes Committed Through Such Publication (“Internet Law”). Accordingly, hosting providers are natural persons or legal entities who provide or operate the systems that host services and content. For example, video sharing platforms such as Youtube, social media platforms such as Facebook and Instagram, and e-commerce sites like Gittigidiyor, Trendyol, Ekşisözlük and similar sites are hosting providers.

According to the Internet Law, the hosting provider is not obliged to control the content it hosts or to investigate whether or not there is any unlawful activity. However, if notified, the hosting provider is obliged to remove the unlawful content it hosts.

Therefore, the legal liability of hosting providers arising from copyright infringement begins with the notification that there is content that violates copyright in the platform they host. The work’s author may send the notification above as a formal warning to the hosting provider, as an e-mail or an application submitted through the copyright infringement notification section, if any, or in other similar ways. Despite the notification, the hosting provider’s failure to remove the copyright-infringing content causes them to be liable for the infringing act and the indemnity.

Since copyright infringement is also regulated as a crime, it should also be examined whether the hosting providers have criminal liability in case of a copyright violation committed on the internet. Criminal sanctions such as prison sentences for hosting providers were abolished, and judicial and administrative fines were introduced with the amendments made in the Internet Law. Considering these changes made in the Internet Law and the principle of individual criminal responsibility, recent court verdicts usually do not impose criminal liability on the hosting providers for copyright infringements.

As a matter of fact, in the action brought up after a criminal complaint filed due to the online publishing of a cartoon belonging to a famous cartoonist without his permission, the Ankara 1st Criminal Court of Intellectual and Industrial Rights with its judgment rendered on the file numbered 2021/79 E. decided on the acquittal of the defendant stating that the work was made public by being published online without the permission of its author, however that the defendant was the hosting provider of the relevant website, that the action of making public by publishing was committed by subscribers of the website and not by the hosting provider themselves, hosting provider’s failure to remove such content even after being notified would only lead to legal liability, that the hosting provider was not criminally liable and considering the principal of individual criminal responsibility, a content provider who makes public the work of someone else without the author’s permission could be criminally liable, and therefore that the defendant has not uploaded to the internet the cartoons subject to the case, has not published them and therefore has not made them public.

As seen above, the legal and criminal liability of hosting providers arising from copyright violations on the internet differ from each other. On the other hand, it should be noted that in cases where the hosting providers act together with the content providers and share the infringing content intentionally and directly, the hosting providers will also have legal and criminal liabilities arising from these violations, as the content providers.

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