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In the case of uniplanar collision of effort and social media: Caricature is their life

Towards the last weeks of December of 2020, Erdil Yasaroglu, Selcuk Erdem and Serkan Altunigne, the leading caricaturists of Turkey, well known and followed by everyone, acquired currency in respect of copyrights and protection of them. A great many of news are written and drawn about them as they are rather popular figures, and their caricatures are being actively used in and disseminated through many anonymous accounts and applications. And various claims are made in magazine news. Social media is swarmed with a great many of people commenting on the issue.

Now, before scrutinizing the legal dimensions of the issue, we wish to summarize the beginning, development, and last scene of the story for you.

The whole story begins with a social media user receiving a message from a law office stating and arguing that he may be punished and fined due to his shares of caricatures in his anonymous account, but if he accepts to pay a more reasonable amount of money, they may withdraw their complaint prepared about him. Then, the user refuses to pay the claimed money, and inquires why the law office does not opt to use the “NOTICE and TAKE DOWN” procedure. However, the talks come to end as he fails to find a common ground with the counterparty. Later, the user removes the complained caricatures from his page, and when he goes to courthouse to give a statement about the complained, he is told that there a great many of pending copyright lawsuits similar to his. Then he explains the story in social media, whereupon a lot of people, like us, become cognizant of it.

Thereafter, Erdil Yaşaroğlu, Selçuk Erdem and Serkan Altuniğne shared in social media a statement titled “Caricature is Our Life”.

After these statements, the events grow by leaps and bounds, and a lot of people start to explain some events in contradiction with said statements. It is uttered that claims are not filed by law offices in accordance with laws, and high amounts of money are claimed therein.

The person who had first raised this argument states that the first court hearing will be held in February 2021. Therefore, we are going to keep you informed about the developments in the case in the coming months.

Now, let’s discuss the issue from a legal point of view. With the increasing importance and use of social media all over the world, the protection of copyrights in these channels, and the procedures to be followed in case of infringement, and how the amount of indemnity resulting therefrom will be calculated have come out to be one of the most contentious subjects like the one we see in the concrete case. In order to prevent the infringements committed in internet media via social media and to protect the rights of beneficiaries, the “Notice-Take Down Procedure” has been adopted also in the Turkish law just like the law systems of other countries. “Notice and Take Down” is a process controlled by online hosts in response to court orders or allegations that content is against the law. Content is removed by the host following notice within specific period. “Notice and Take Down” is widely operated in relation to copyright infringement. In fact, also in our concrete case, a great many of users are talking about the non-application of this “Notice and Take Down Procedure”. This system has been regulated and dealt with in Additional Article 4 of the Intellectual and Artistic Works Law no. 5846.

Additional Article 4: “… To this end, natural person or legal entity whose rights are infringed apply first to the information content provider and ask the latter to stop the infringement in three days. If the infringement is not stopped, this time, upon an application filed to the Public Prosecutor, the service provider is asked to stop the services rendered to the information content provider in default within three days thereafter…”

Pursuant to Additional Article 4 of the Intellectual and Artistic Works Law, the author can first of all apply to the person/entity sharing the contents used in online media and request the latter to remove the contents in breach within 3 days. If, upon this warning, the content sharing person/entity does not fulfil the request, and continues the acts of breach, then the copyright owner has the right to file a complaint to the Public Prosecutor. However, stoppage of the act of breach by using this system does not preclude the copyright owner to use his rights of claim for material and moral damages arising therefrom.

However, the Draft Law on Amendments in the Intellectual and Artistic Works Law has been promulgated on 5 May 2017, and Additional Article 4 has been rearranged therein, and the procedural obligation of application to the “Notice and Take Down Procedure” before filing a complaint has been terminated.

Article 77/B“Beneficiaries whose rights recognized by this Law are infringed in internet media may either send a warning to the content provider’s or the hosting service provider’s electronic mail address or other communication means stated in their internet pages, together with information and documents evidencing their ownership of right and the infringement thereof, and request the latter to discontinue broadcasting the infringing contents, or apply directly to the Public Prosecutor and request prevention of access thereto…”

This amendment is contemplated to enable the victims of infringement to get a favourable result more quickly. In the concrete case, filing of a complaint directly to the Public Prosecutor is allowed. However, it is not yet known when this draft law will be put into force in Turkey.

In tandem with the information cited in the preceding paragraphs, it will be better to wait for a decision as to whether the initiated legal proceedings are carried out in accordance with the laws or not, and to see what will be held and judged by the court. Although there are not a great many of court judgments issued yet in connection therewith, a review of the judgment no. 2019/8234 in case file 2019/1433 dated 17.12.2019 of the Supreme Court of Appeals 11th Chamber reveals a decision of approval as formulated here below: “noting that a notification has not properly been sent by the claimant professional associations to the defendant broadcasting corporation pursuant to last paragraph of Additional Article 4 of the Intellectual and Artistic Works Law no. 5846, and that the defendant could by no means know in advance which contents constitute an infringement and remove the same from its contents of broadcasting, the claims which could not be proven against the defendant are required to be dismissed.” In line with these explanations, it will be more appropriate to speak on the issues which are not yet known by us and may emerge in the future, and on the legal situation of complained people, and the issues of indemnification only after the pending legal cases are completed.