Monetary Claims Arising from Copyright Infringement (in Light of Court of Cassation Decisions)

Intellectual property rights are examined under two general headings: copyright and industrial property rights. Copyright, in turn, is classified under four main headings: scientific and literary works, musical works, works of fine arts, and cinematographic works.

In this article, we will examine, in light of Court of Cassation decisions, the monetary claims that the author may assert against the infringer in the event of copyright infringement.

RIGHTS ARISING FROM THE WORK

The rights of the author arising from the work are divided into two: economic rights and moral rights.

Moral rights may be listed as the right of disclosure to the public (umuma arz), the right to be identified as the author (indication of the name), the right to prevent alterations to the work, and the right of access to the original of the work.

Economic rights, on the other hand, may be listed as the right of adaptation, the right of reproduction, the right of distribution, the right of performance, broadcasting and communication to the public, and other related rights.

In the event of infringement of a right arising from the work, the author may resort to legal remedies with various claims.

MONETARY CLAIMS THE AUTHOR MAY ASSERT

Where there is a copyright infringement concerning a work such as a painting, a piece of music or a literary work, 4 basic monetary claims may be asserted under the Law on Intellectual and Artistic Works (FSEK): the economic rights claim within the scope of removal of the infringement (Art. 68/1-2), compensation for non-pecuniary damage (Art. 70/1), compensation for pecuniary damage (Art. 70/2), and surrender of the profit obtained (Art. 70/3).

In this article, we have not discussed the claims other than monetary claims that the author may bring in the event of infringement, such as determination of authorship, determination of the infringement, prevention of the infringement, correction of alterations, restoration to the former state, correction of the alteration by public announcement and destruction of the copies. However, it should not be forgotten that a decision on these matters may also be requested in the same action.

Economic rights claim as part of removal of the infringement (Art. 68)

The provisions on removal of the infringement are set out in Articles 66, 67 and 68 of the FSEK, and the expression removal of the infringement is to be understood as the elimination of the consequences of the infringement. Within the scope of removal of the infringement, the elimination of both the economic and the moral consequences may be requested. For example, within the scope of moral claims under FSEK Art. 67, if the author’s signature has been removed from the work, it may be requested, as part of removal of the infringement, that the author’s signature be placed on the work or, if some other alteration has been made, that this alteration be removed and the work restored to its original state.

As regards economic claims within the scope of removal of the infringement, under FSEK Art. 68, right holders whose permission has not been obtained may claim, from those who, without obtaining the written permission of the author (the person who created the work), adapt or reproduce the work, distribute reproduced copies, perform it, or communicate it to the public by any means serving to transmit signs, sounds or images, up to three times the fee they could have demanded had a contract been concluded, or of the market rate to be determined under the provisions of the FSEK. This claim is not a claim for compensation for pecuniary damage. The consequences of the infringement are simply eliminated as if there were a valid contractual relationship between the parties. The person claiming the fee may assert against the infringer all the rights and powers he or she could have had if he or she had concluded a contract with the infringer.

“It must be accepted that, where the right holder opts for payment of a fee under Article 68/1 of the FSEK within the scope of removal of the infringement, he declares his intention to conclude a hypothetical contract with the infringer only for the uses of economic rights that are the subject of the infringement, and that, if this claim is accepted, a hypothetical contractual relationship is established only for the uses of economic rights that are the subject of the infringement (Arslanlı, Halil: Fikrî Hukuk Dersleri II, Istanbul, 1954, p. 218; Kılıçoğlu, Ahmet: Fikrî Hakların İhlalinde Hukuksal Koruma Yolları, TBB Dergisi, Issue 54, 2004, p. 72; Yavuz, Levent/Alıca, Türkay/Merdivan, Fethi: Fikir ve Sanat Eserleri Kanunu Yorumu Vol. II, Ankara, 2015, p. 2080; Tekinalp, p. 319; Öztan, p. 647.). As a result, the infringer’s uses of economic rights that are the subject of the action will become lawful uses within the scope of the hypothetical contract, and the right holder will not be able to request the removal of the uses covered by the fee determined under Article 68/1 of the FSEK (Yavuz/Alıca/Merdivan, p. 2080). ... In other words, the claiming by the right holder of the fee, or at most three times that fee, under Article 68 of the FSEK is a sui generis method of removal carried out through the right holder’s subsequent ratification of the infringer’s infringement of economic rights and its hypothetical placement on a contractual basis. Indeed, this point is expressed in Article 68/6 of the FSEK as follows: “The person claiming the fee may assert against the infringer all the rights and powers he could have had if he had concluded a contract with the infringer.”” (Assembly of Civil Chambers of the Court of Cassation, Docket No. 2017/11-71, Decision No. 2020/483, 30.6.2020)

A right holder who brings an economic rights claim for 3 times the market rate under Article 68 of the FSEK will not be able to assert other removal claims relating to the subject of the infringement up to the date of the action, such as the collection or destruction of the reproduced or distributed work. This is because it is held that, once the economic right claimed under Art. 68 is obtained, the infringement is eliminated through the hypothetical contractual relationship.

“In other words, it is inconceivable that a right holder who claims the fee, or at most three times that fee, under Article 68 of the FSEK should bring other removal claims relating to the subject of the infringement up to the date of the infringement, such as the collection or destruction of the reproduced or distributed work (Kılıçoğlu, p. 72.). This is because, here, it is decided, in line with the right holder’s claim, that the infringement is removed by means of a hypothetical contract. In other words, the claiming by the right holder of the fee, or at most three times that fee, under Article 68 of the FSEK is a sui generis method of removal carried out through the right holder’s subsequent ratification of the infringer’s infringement of economic rights and its hypothetical placement on a contractual basis. Indeed, this point is expressed in Article 68/6 of the FSEK as follows: “The person claiming the fee may assert against the infringer all the rights and powers he could have had if he had concluded a contract with the infringer.” Accordingly, if the right holder wishes the infringement to be removed, for example, through the collection or destruction of the copies in circulation that constitute an infringement relating to the period before the date of the action, he should claim not payment of the fee under Article 68/1 of the FSEK, but compensation under Article 70/2 of the FSEK or the profit obtained by the infringer under Article 70/3.” (Assembly of Civil Chambers of the Court of Cassation, Docket No. 2017/11-71, Decision No. 2020/483, 30.6.2020)

In calculating the fee that a right holder bringing an economic rights claim under FSEK Art. 68 could have demanded had a contract been concluded, comparable contracts will be used first, if there are any; if there are none, this amount will be determined on the basis of a notionally determined market rate.

“However, under Article 68/1 of Law No. 5846, which applies to the case, since the book in dispute, the economic rights to which are understood to belong to the plaintiff, was distributed by the defendants without permission by extending the scope of the license, the amount of compensation for pecuniary damage must be determined first on the basis of the fee set in comparable contracts, if any, and, if there is no contract that could serve as a comparable, on the basis of a notionally determined market rate, and 3 times the amount determined by this method must be awarded, in line with the claim. Accordingly, in the present case, given that there is an exactly comparable contract between the plaintiff and the defendant T Medya Pazarlama A.Ş. for the publication of the same work through a newspaper, that this contract provides for the payment of a copyright fee of 1.35 TL for each copy to be distributed, and that the event in dispute occurred approximately 5 months later, it should have been accepted that the said contract could be regarded as a comparable contract, the distribution right fee of 1.35 TL for each copy distributed without permission should have been applied to the present case, and compensation of 3 times the resulting amount should have been awarded; instead, rendering a decision on the basis of the expert report, which made a notional calculation according to the general market rate as if there were no comparable contract, was not correct, and the judgment had to be reversed in favor of the defendants.” (Court of Cassation, 11th Civil Chamber, Docket No. 2018/5073, Decision No. 2019/6260, 7.10.2019)

Where 3 times the market rate is claimed under FSEK Art. 68, within the scope of removal of the infringement, as if there were a contract between the parties, the limitation period will also be calculated as 10 years, unlike the limitation period for a claim for compensation for pecuniary damage under FSEK Art. 70/2 (tort – 2 years).

“Another consequence of claiming a hypothetical fee under Article 68/1 of the FSEK arises with regard to the limitation period. Since a hypothetical contractual relationship is established between the parties when a hypothetical fee is claimed under Article 68/1 of the FSEK, it must be accepted that the limitation period is also subject to the contractual limitation period. In other words, in this case, the limitation period is 10 years under Article 147 of the Turkish Code of Obligations No. 6098 (TBK) (Article 125 of the Code of Obligations No. 818 (BK)).” (Assembly of Civil Chambers of the Court of Cassation, Docket No. 2017/11-71, Decision No. 2020/483, 30.6.2020)

As regards the economic and moral claims to be brought within the scope of removal of the infringement, it is irrelevant whether or not the infringer is at fault (Art. 66/3).

“Article 66 of the said Law, which governs the action for “removal of the infringement”, one of the civil actions that may be brought in the event of infringement of the rights under that Law, contains a special provision governing liability in this respect. The text of the article reads verbatim: “A person whose moral and economic rights are infringed may bring an action against the infringer for removal of the infringement. If the infringement was committed by a representative or employees of an enterprise while performing their services, an action may also be brought against the owner of the enterprise. Fault on the part of the infringer or of the persons mentioned in the second paragraph is not required…” The first paragraph of the said article provides that a person whose rights are infringed may bring an action for removal of the infringement against the infringer; the second paragraph, that the same action may also be brought if the infringement is committed by a representative or employees of the enterprise; and the third paragraph, that, for this action to be brought, not even fault on the part of either the infringer or the representatives and employees is required. It is understood that an action for removal of the infringement may be brought in every case where there is an infringement of economic and moral rights (FSEK Art. 66/1). For an action for removal to be brought, the infringer need not be at fault. Fault and its degree play a role in the assessment of the damage and in the measures to be taken (FSEK Art. 66/3).” Assembly of Civil Chambers of the Court of Cassation, Docket No. 2018/998, Decision No. 2019/373, 28.3.2019

According to the case law of the Court of Cassation, where a fee amounting to 3 times the market rate is claimed under FSEK Art. 68, within the scope of removal of the infringement, as if there were a contract between the parties, the court must award 3 times the fee if the conditions are also met. The provision in question is essentially a kind of civil penalty, and if there is a claim to this effect, the judge cannot award less.

“The action for removal regulated in the FSEK covers not only the elimination of the infringement but also the taking of measures to prevent its repetition, and even claims for a kind of monetary penalty paid to the right holder in the event of infringement of economic rights (Tekinalp, Ünal: Fikri Mülkiyet Hukuku, Istanbul 2012, p. 311.). Indeed, a decision that “three times the fee” be paid to the right holder in the event of infringement of economic rights, as regulated in Article 68 of the FSEK, has the nature of a statutory penalty aimed at deterring the infringer. However, the “penalty” meant here is not a penalty in the sense of criminal law or of Article 179 of the Turkish Code of Obligations No. 6098 (TBK) (Article 158 of the Code of Obligations No. 818 (BK)); it is entirely a private law penalty, in other words a “civil penalty” (Öztan, p. 649.). Accordingly, by making the infringer pay a “civil penalty” of three times the fee under Article 68 of the FSEK, the aim is for the infringer to bear the consequences of his wrongful conduct, and it is also ensured that the traces of the infringement are completely erased (Tekinalp, p. 319.)” (Assembly of Civil Chambers of the Court of Cassation, Docket No. 2017/11-71, Decision No. 2020/483, 30.6.2020)

"Furthermore, the provision in paragraph 68/1 of the FSEK that the author "may claim up to three times the damage suffered" is an authority granted to the author to exercise an option whereby, in the event of infringement of the author’s economic rights, three times the market rate may, where necessary, be claimed from the infringer. In this respect, the authority to exercise any of the options granted to the author by the Law to claim up to three times the market rate belongs to the plaintiff, who is the author. The court cannot change the claim chosen. Accordingly, with regard to the market rate determined under paragraph 68/1 of the ..., while judgment should have been rendered having regard to the plaintiff’s claim for an award of three times the market rate, it was not considered correct to award twice the amount as compensation on the grounds stated, and the decision therefore had to be reversed in favor of the plaintiff." (Court of Cassation, 11th Civil Chamber, Docket No. 2015/14042, Decision No. 2017/1973, 30.5.2017)

Where 3 times the market rate under FSEK Art. 68 is claimed together with the profit obtained under Art. 70/3, the amount claimed under Article 68 will be deducted (Art. 70/3, last sentence).

“On the basis of the expert report it adopted and the contents of the file, the court found that the defendant had reproduced and distributed the work belonging to the plaintiff and had disclosed it to the public without including the author’s name and after altering it in a way that changed its nature and character; that the plaintiff could bring a claim for copyright compensation as set out in Article 68 of the FSEK; that the copyright compensation calculated by the court-appointed expert was 141.00 TL; that, where the profit obtained and copyright compensation are claimed together, collection of only one of them may be ordered; that the amount of profit obtained had been determined as 185.00 TL; that, accordingly, since the amount of profit obtained exceeded the amount of copyright compensation, it was possible to award only the profit obtained; and, on the ground that the defendant had infringed the plaintiff’s moral rights of disclosure to the public, indication of the name and prevention of alterations to the work, it decided to partially accept the action, to order the collection from the defendant of 185.00 TL in compensation for pecuniary damage and 1,500.00 TL in compensation for non-pecuniary damage, to order the removal of the defendants’ infringement in this manner, to order the cessation of the defendants’ acts other than those concerning the copies bearing the banderoles in the number range SKB-UUL111886-112885, and to order the publication of the decision. The plaintiff’s counsel appealed the decision on points of law. In view of the information and documents in the case file, and since there is no aspect contrary to procedure and law in the discussion and evaluation of the evidence relied on in the reasoning of the court’s decision, all of the grounds of appeal raised by the plaintiff’s counsel are unfounded. CONCLUSION: For the reasons explained above, it was unanimously decided on February 25, 2010 to dismiss all of the grounds of appeal raised by the plaintiff’s counsel and to ( UPHOLD ) the judgment, which was found to be in accordance with procedure and law.” (Court of Cassation, 11th Civil Chamber, Docket No. 2008/11423, Decision No. 2010/2165, 25.2.2010)

Claim for compensation for pecuniary damage (Art. 70/2)

In order to claim compensation for pecuniary damage under FSEK Art. 70/2, first and foremost, the person who caused the infringement must be at fault.

“The “fee” action to be brought under Article 68 of the FSEK, which is a special provision setting out the methods of removal in the event of infringement of economic rights, is an action brought without the element of culpable conduct being required, and it must not be confused with actions for compensation brought on the ground of tort. This is because the action for compensation for pecuniary damage to be brought in the event of infringement of economic rights, which depends on the element of culpable conduct and falls within the framework of the provisions on tort, is regulated in Article 70/2 of the FSEK. In an action based on Article 68 of the FSEK, it is not possible to claim, in addition, compensation for pecuniary damage under Article 70/2 of the FSEK (Öztan, p. 650.). This is because the right holder’s damage will easily be covered by an award of three times the fee under Article 68/1 of the FSEK. However, if the fee in the nature of a “civil penalty” awarded under Article 68/1 of the FSEK falls short of the right holder’s damage, there is no obstacle to claiming compensation for pecuniary damage under Article 70/2 of the FSEK, provided that the infringer’s fault is proven (Öztan, p. 650.).” (Assembly of Civil Chambers of the Court of Cassation, Docket No. 2017/11-71, Decision No. 2020/483, 30.6.2020)

“The “fee” action to be brought under Article 68 of the FSEK, which is a special provision setting out the methods of removal in the event of infringement of economic rights, is an action brought without the element of culpable conduct being required, and it must not be confused with actions for compensation brought on the ground of tort. This is because the action for compensation for pecuniary damage to be brought in the event of infringement of economic rights, which depends on the element of culpable conduct and falls within the framework of the provisions on tort, is regulated in Article 70/2 of the FSEK.” (Assembly of Civil Chambers of the Court of Cassation, Docket No. 2017/11-6, Decision No. 2019/85, 7.2.2019)

The basis of the action for compensation for pecuniary damage to be brought in the event of copyright infringement is tort liability. In this respect, the claim for compensation for pecuniary damage differs from the economic rights claim within the scope of removal of the infringement (Art. 68), the basis of which is breach of contract. Where an economic rights claim for the fee, or up to 3 times the fee, is brought under FSEK Art. 68, compensation for pecuniary damage cannot be claimed under FSEK Art. 70/2. However, if the damage is thought to exceed the economic right claimed under Art. 68/1, a claim may be made under Art. 70/2 for the excess amount.

“The “fee” action to be brought under Article 68 of the FSEK, which is a special provision setting out the methods of removal in the event of infringement of economic rights, is an action brought without the element of culpable conduct being required, and it must not be confused with actions for compensation brought on the ground of tort. This is because the action for compensation for pecuniary damage to be brought in the event of infringement of economic rights, which depends on the element of culpable conduct and falls within the framework of the provisions on tort, is regulated in Article 70/2 of the FSEK. In an action based on Article 68 of the FSEK, it is not possible to claim, in addition, compensation for pecuniary damage under Article 70/2 of the FSEK (Öztan, p. 650.). This is because the right holder’s damage will easily be covered by an award of three times the fee under Article 68/1 of the FSEK. However, if the fee in the nature of a “civil penalty” awarded under Article 68/1 of the FSEK falls short of the right holder’s damage, there is no obstacle to claiming compensation for pecuniary damage under Article 70/2 of the FSEK, provided that the infringer’s fault is proven (Öztan, p. 650.).” Assembly of Civil Chambers of the Court of Cassation, Docket No. 2017/11-71, Decision No. 2020/483, 30.6.2020

Under Art. 72 of the Turkish Code of Obligations, a claim for compensation becomes time-barred upon the expiry of two years from the date on which the injured party learned of the damage and of the person liable to pay compensation and, in any event, of ten years from the date on which the act was committed. However, if the compensation arises from an act subject to a penalty for which the criminal laws provide a longer limitation period, that limitation period applies.

In our legislation, infringements relating to the FSEK are, as a rule, defined as criminal offenses. Therefore, instead of the 2-year limitation period, the 8-year period under Art. 66 of the Turkish Penal Code (TCK) will apply. Since in criminal law the limitation period starts from the date of the act/event, the date of the act/event will be taken as the basis for the start of the limitation period.

Remaining silent for a long time in the face of an infringement may mean that implied consent has been given to the unlawful act. For this reason, it is advisable to bring actions within a reasonable time, particularly in the context of compensation claims. However, if the infringing party is not acting in good faith, it cannot be argued that a loss of rights has occurred because of the silence.

“Persons who do not exercise the care and attention expected of them and who themselves do not comply with the rule of honesty cannot argue that others have suffered a loss of rights by remaining silent in the face of this conduct contrary to honesty. Art. 3 of the Turkish Civil Code (TMK) provides: “Where the law attaches a consequence to good faith, the existence of good faith is the rule. However, a person who has failed to exercise the care expected of him according to the requirements of the situation cannot claim good faith”. The law does not protect attitudes and conduct contrary to the rule of honesty. On the other hand, one of the general principles of law is the principle that “No one may claim a right from others by relying on his own fault" (No one may benefit from his own unlawfulness/Nemo auditur propriam turpitudinem allegans).” Court of Cassation, 11th Civil Chamber, Docket No. 2020/1866, Decision No. 2020/3245, 26.6.2020

Claim for compensation for non-pecuniary damage (Art. 70/1)

An author whose economic or moral rights are infringed may, if the conditions are met, claim compensation for his or her non-pecuniary damage. The case law of the Court of Cassation states that the moral rights arising from copyright are limited in number (numerus clausus). These rights are the right to disclose the work to the public (Disclosure to the public, FSEK Art. 14), the right to have the author’s name indicated on the work (Right to be identified as the author, FSEK Art. 15), the right to prohibit alterations to the work (Protection of the integrity of the work, FSEK Art. 16), and the author’s right of access to the original of the work (Rights of the author against the possessor and owner, FSEK Art. 17).

“To explain the moral rights of the author, moral rights are absolute and exclusive powers which arise, owing to the bond between the work and its author, in connection with the author’s personality, and which can be asserted against everyone. What distinguishes them from personality rights is that, in the field of intellectual property law, the existence of a work that has been made public is required for the author’s moral right to arise. The moral rights are as follows:

-The right to disclose the work to the public (Disclosure to the public, FSEK Art. 14),

-The right to have the author’s name indicated on the work (Right to be identified as the author, FSEK Art. 15),

-The right to prohibit alterations to the work (Protection of the integrity of the work, FSEK Art. 16),

-The author’s right of access to the original of the work (Rights of the author against the possessor and owner, FSEK Art. 17),

Moral rights are limited in number (numerus clausus). Apart from these, it is accepted that the author may also rely on rights arising from the law of personality (Court of Cassation Decision on the Unification of Case Law No. 1/2, dated 18.12.1981).” (Assembly of Civil Chambers of the Court of Cassation, Docket No. 2018/998, Decision No. 2019/373, 28.3.2019)

The author’s right to disclose the work to the public (umuma arz) continues even after the work has been disclosed to the public (published or otherwise made public). As a natural consequence of this, where acts constituting an infringement of economic rights, such as unauthorized reproduction and distribution, take place, the author will be able to claim removal of the infringement, the economic right and compensation for non-pecuniary damage.

“The "right to object to the work being impaired in any other manner" under Article 6bis of the Berne Convention concerning the moral rights of the author also forms a legal basis for this view. The text of that article includes the right to object to the disclosure of the work to the public in breach of contract or without permission even after the work has been made public. The opposite would result in the protection not of the author but of pirate publishing. Where a work has been made public by being disclosed to the public once with the author’s consent and the same work is later reproduced and traded without permission through pirate publication, accepting that, if there is also nothing in the pirate editions that harms the author’s honor and dignity, the author’s moral right under Article 14/1 of the FSEK has been exhausted and that the author’s claims against pirate publishers are limited to economic rights alone would be incompatible with the principles of effective protection of the author. On the other hand, where "exact copies" of the author’s work that was placed on the market with his consent are put on the market as pirated copies, the view that the author’s right of disclosure to the public, one of the moral rights he holds as part of his personality, would not be harmed by his work being put into commerce by others and without his consent cannot be accepted either.

In this respect, although, under paragraph 67/1 of the FSEK, the right to request removal of the infringement can only be applied where "a work not yet made public is disclosed to the public without the consent of its author or contrary to the author’s wishes", the author, "even if the work has been made public", will also be able, by way of paragraph 14/1 of the FSEK, to request prevention of the infringement under Article 69 of the same Law, and to claim compensation for non-pecuniary damage from the infringer under paragraph 70/1. Although, as a rule, disclosure of the work to the public is a one-time legal act, it is by this means that the work is made public and becomes subject to the protection of intellectual property law. The purpose of granting moral rights and powers specific to the author is also to protect and encourage intellectual creativity more strongly. In this respect, the author’s right of disclosure to the public set out in Article 14/1 of the FSEK continues even after the work has been made public and, where any acts constituting an infringement of economic rights, such as unauthorized reproduction or distribution, are carried out, it also gives the author the power to claim compensation for the moral right in addition to the economic rights infringed.” (Assembly of Civil Chambers of the Court of Cassation, Docket No. 2018/998, Decision No. 2019/373, 28.3.2019)

The fact that the work has previously been disclosed to the public (umuma arz) will not mean that this right has been exhausted. In other words, the right to compensation for non-pecuniary damage will arise again with each unauthorized use of the work.

“Turning to the present case in light of the explanations above, since the derivative work in which the plaintiff holds the rights was distributed by the defendants as a promotion without permission, and given that the author has the right under Article 14 of FSEK No. 5846 to determine when the work is to be published and that the prior disclosure of the work to the public does not result in the exhaustion of this right, it must be accepted that there is a right to compensation for non-pecuniary damage with each unauthorized use of the work. Although, during the deliberations at the Assembly of Civil Chambers, some members put forward the view that it should be accepted that the right of disclosure to the public set out in FSEK Art. 14/1 ends once the author has exercised the right of disclosure to the public over the work, and that, therefore, the plaintiff could not claim compensation for non-pecuniary damage for the unauthorized publication of the work in dispute, which had previously been disclosed to the public, this view was not adopted by the majority of the Assembly. That being the case, the decision of the Local Court to reject the claim for compensation for non-pecuniary damage on the ground that the right of disclosure to the public was exhausted once it had been exercised is incorrect.” (Assembly of Civil Chambers of the Court of Cassation, Docket No. 2018/998, Decision No. 2019/373, 28.3.2019)

In order to claim compensation for non-pecuniary damage on account of the infringement of moral rights, the infringer need not be at fault. It is sufficient that the moral right has been infringed.

“The FSEK has recognized rights closely connected with the personality of the author and has named them "moral rights". (FSEK 14-16) These are the power of disclosure of the work to the public (Art. 14), the power to have the name indicated (Art. 15), the power to prohibit alterations to the work (Art. 16), and the rights of the author against the possessor and owner (Art. 17). In the event of infringement of the moral rights mentioned above, the author may bring an action for compensation for non-pecuniary damage under Article 70/1 of the FSEK. For an action to be brought, it is sufficient that the moral rights belonging to the author have been infringed, and fault on the part of the other party is not required.” (Assembly of Civil Chambers of the Court of Cassation, Docket No. 2003/4-260, Decision No. 2003/271, 2.4.2003)

Surrender of the profit obtained (Art. 70/3)

In the event of copyright infringement, the author may also claim the profit obtained by the infringer (Art. 70/3). The claim for the profit obtained will be assessed, within the scope of the provisions on agency without authority of the Turkish Code of Obligations No. 6098 (TBK), "as business conducted in the interest of the agent" (TBK Art. 530).

"The action concerns a claim for compensation on account of the publication by the defendant company of works whose economic rights belong to the plaintiff. By a petition for amendment of claim (ıslah), the plaintiff exercised its elective right and based its compensation claims on payment of the profit obtained by the defendant under Article 70/3 of Law No. 5846. In this case, while the court should have determined, within the scope of the provisions on agency without authority, the net profit obtained by the defendant from the sale of the works in dispute and rendered a decision according to the result, it was not correct to award the amount found by calculating a 20% profit on the revenue obtained from the books sold, taking into account the response of the Istanbul Publishers’ Association that the publisher’s profit margin on such books is 20%, and the decision had to be reversed in favor of the defendant." Court of Cassation, 11th Civil Chamber, Docket No. 2014/127, Decision No. 2014/7331, 14.4.2014

Since the TBK contains no special provision on the limitation period for actions to be brought under the provisions on agency without authority, the 10-year general limitation period set out in TBK Art. 147 will apply to such claims.

"In actions to be brought for the collection of payment for work performed in excess of a contract or without a contract, the provisions on agency without authority in Articles 410 et seq. of the Code of Obligations No. 818 (B.K.) or Articles 526 et seq. of the Turkish Code of Obligations No. 6098 (T.B.K.) will apply, depending on the date on which the work was performed. Neither the Code of Obligations nor the Turkish Code of Obligations contains a special provision on the limitation period in actions to be brought under the provisions on agency without authority. As a result, since there is no provision to the contrary in the law, the 10-year limitation period in Article 125 of the B.K. and Article 147 of the T.B.K., as the general limitation period, will also apply in actions to be brought under the provisions on agency without authority (judgment of the 15th Civil Chamber of the Court of Cassation dated 17.03.2015, Docket No. 2015/1035, Decision No. 2015/1289)" (Court of Cassation, 15th Civil Chamber, Docket No. 2020/1360, Decision No. 2020/1698)

It should not be forgotten that, where 3 times the market rate under FSEK Art. 68 is claimed together with the profit obtained under FSEK Art. 70/3, the amount claimed under Article 68 will be deducted (Art. 70/3, last sentence).

“On the basis of the expert report it adopted and the contents of the file, the court found that the defendant had reproduced and distributed the work belonging to the plaintiff and had disclosed it to the public without including the author’s name and after altering it in a way that changed its nature and character; that the plaintiff could bring a claim for copyright compensation as set out in Article 68 of the FSEK; that the copyright compensation calculated by the court-appointed expert was 141.00 TL; that, where the profit obtained and copyright compensation are claimed together, collection of only one of them may be ordered; that the amount of profit obtained had been determined as 185.00 TL; that, accordingly, since the amount of profit obtained exceeded the amount of copyright compensation, it was possible to award only the profit obtained; and, on the ground that the defendant had infringed the plaintiff’s moral rights of disclosure to the public, indication of the name and prevention of alterations to the work, it decided to partially accept the action, to order the collection from the defendant of 185.00 TL in compensation for pecuniary damage and 1,500.00 TL in compensation for non-pecuniary damage, to order the removal of the defendants’ infringement in this manner, to order the cessation of the defendants’ acts other than those concerning the copies bearing the banderoles in the number range SKB-UUL111886-112885, and to order the publication of the decision. The plaintiff’s counsel appealed the decision on points of law. In view of the information and documents in the case file, and since there is no aspect contrary to procedure and law in the discussion and evaluation of the evidence relied on in the reasoning of the court’s decision, all of the grounds of appeal raised by the plaintiff’s counsel are unfounded. CONCLUSION: For the reasons explained above, it was unanimously decided on February 25, 2010 to dismiss all of the grounds of appeal raised by the plaintiff’s counsel and to ( UPHOLD ) the judgment, which was found to be in accordance with procedure and law.” (Court of Cassation, 11th Civil Chamber, Docket No. 2008/11423, Decision No. 2010/2165, 25.2.2010)

In this article, we have examined, in light of Court of Cassation decisions, the monetary claims that an author whose rights have been infringed may bring against the infringer in the event of copyright infringement. It should not be forgotten that, in addition to monetary claims, claims such as determination of authorship, prevention of the infringement and determination of the infringement may also be asserted.

In all these processes, it will be in the parties’ interest to obtain legal support from a lawyer in order to avoid any loss of rights.

This article is a general assessment prepared in accordance with the legislation in force on its date of publication; it does not constitute a legal opinion. This English text is a translation of the Turkish original; in case of any discrepancy, the Turkish version prevails.