• NSN Law Bulletin

Unexpected Copyright Compensation Decision from a Turkish Court

It must be a cultural problem, that we in Turkey have the tendency to hold concrete values superior to abstract values. The same rule applies when it comes to copyright protection. It can be quite challenging to explain to both judicial and administrative authorities that a copyrighted work may be highly valuable, and thus “expensive”.

When reviewing past Turkish judicial decisions, it may be observed that the Turkish Courts tend to award lower compensation for copyright violations. In most cases, compensation for royalty fees awarded in favor of the owner of a work are much less than what is sought by a plaintiff or even what would reflect normal earnings by the royalty owner. However, the 3rd Civil Court of First Instance in Antalya has recently rendered an unexpected decision regarding royalty compensation, which included both the representation fee and the sheet music hiring fee. In a lawsuit that had been ongoing since 2008, on 06 November 2020 the court awarded the plaintiff music company 138,375.00 EUR, which was truly a surprising amount for such a case.

Background of the Case

The plaintiff right holder, who was being represented by NSN Law Firm, had contractually acquired the financial rights and the right of representation in Turkey of the composition and libretto of an opera work. In this way, the right holder gained the right to authorize third parties to use the artwork for a certain price as per Article 24 of Code No. 5846 on Intellectual and Artistic Works (hereinafter “the Law”).

However, the plaintiff discovered that the defendant had infringed the rights of our client by using this artwork via CD player 18 times since 2004 without obtaining permission. For such infringements, Article 68 of the Law allows a plaintiff to file a lawsuit for prohibition of infringement and claim treble damages, which is the price determined presumptively as if the plaintiff and defendant had entered into a contractual relationship. Accordingly, our client filed a lawsuit claiming three times the price for the representation fee and the music sheet hiring fee that would have been paid if a contract had been executed between our client and the infringing entity.

Compensation Calculation of the Court

At the end of the legal proceedings, which unfortunately lasted more than a decade, the Court found that the artwork was used and exhibited via CD player by the defendant without obtaining permission from the right holder and without paying a fee to the right holder. Furthermore, the Court also held that considering its legal status, the defendant should have known that it was necessary to obtain permission from the right holders, hence, the defendant was found to be being clearly at fault. The Court considered the status of the infringing entity and its flagrant violation of copyright to be significant factors during the value assessment pursuant to Article 68/1 of the Law.

Although the defendant claimed in its defense that the artwork had been presented free of charge as a public service to the community and had not made any profit from the presentations, the Court was unmoved by this line of argument since it does not negate the primary issue of the defendant’s unauthorized use of the copyrighted work. Upon the request of the defendant for a reduction in the award, the Court clearly stated that a reduction would not be equitable because the defendant had repeatedly infringed the financial rights of the claimant by exhibiting the work without permission despite the fact that they knew or should have known that they needed permission beforehand.

In its assessment of the representation and sheet music hiring fees, the Court held that even though the artwork had been presented by the defendant via CD player and had not performed it through the use of sheet music, compensation for the sheet music hiring fee was justified as well since the right holder normally demands a sheet music hiring fee in addition to the representation fee under its usual contracts even when sheet music is not used. This holding by the Court demonstrates that the usual fee requests of copyright holders for their artwork should be included in the calculation of the presumptive price and subsequent award under Article 68 of the Law. Furthermore, the Court determined that the plaintiff was entitled to three times the price of the representation and the music sheet hiring fees as a matter of law under Article 68 of the Law.

The Court’s Judgment

The Court held that to prohibit the infringement by the defendant and to mitigate the damages resulting from the infringement, an award in favor of the plaintiff in the amount of 138,375.00 EUR was an appropriate compensation amount. This is probably the highest award for such a copyright infringement case in Turkey. The award consisted of 110,700.00 EUR, which is treble the representation fee, and 27,675.00 EUR, which is treble the music sheet rent fee.

Author: Bilge Derinbay, Mahmut Ramazan Ertaş