Wikilegal/Turkish Wikipedia and Non-Free Content
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The Turkish Wikipedia community is presently discussing plans to implement an Exemption Doctrine Policy (“EDP”), a voluntarily-adopted project-specific policy governing the upload and use of copyrighted material on a Wikimedia project. An EDP permits the upload and use of copyrighted material, regardless of its licensing status, as long as such material can be legally used under the laws of the United States and of the country or countries where the content is predominantly accessed (in this case, Turkey). Thus, in order for the Turkish Wikipedia community to adopt an EDP that adheres to the restrictions imposed under Turkish copyright law, it must first ascertain which uses of copyrighted content are permitted under Turkish law. Please note that while the Turkish Wikipedia community should also analyze whether particular uses of copyrighted materials are permitted under US copyright law, the preliminary research presented here is limited to addressing aspects of Turkish copyright law.
1. Introduction edit
Limitations on the exclusive rights afforded to copyright holders are primarily discussed in articles 34, 35, and 37 of Turkey’s Law on Intellectual and Artistic Works (“Law 5846”). These limitations, discussed in greater detail below, provide some clarity as to which uses of copyrighted material are permitted under Turkish law.
Preliminary research indicates that Turkey does have copyright limitations that are similar to certain elements of the United States’ fair use doctrine, and which should apply to allow for uses of copyrighted content to a similar extent as that permitted on English Wikipedia. Specifically, Turkey has a copyright exception that allows for uses dedicated to educational purposes, an exception that permits for quotation, and an exception that permits for news reporting, each of which could be found to allow for the use of copyrighted content on Turkish Wikipedia, subject to certain restrictions.
Please note that I am not a lawyer, and am most certainly not a Turkish lawyer. This post is NOT legal advice, but rather a presentation of basic background research in order to provide a starting point for the community’s discussion.
2. ARTICLE 34 – Exception for Educational Purposes edit
Article 34 of Law No. 5846 limits the right of authors to prohibit uses of their works in educational contexts. The Article makes it “free to create selected or collected works, which are (1) dedicated to educational purposes, (2) by way of making quotations (3) in an amount justified by the purpose, from published musical, literary and scientific works and works of fine arts that are made public.” This freedom must (4) “not be used in a way which would prejudice the legitimate interests of the author without good reason.”  The use must also (5) not “conflict with the normal exploitation of the work.” Finally, the name of the work and the name of the author must be (6) cited in the “customary manner” [numbering and emphasis added].
2.1. “Dedicated to educational purposes” edit
In order for a use to be found to have an educational purpose under Turkish copyright law, it is critical that the use not have a profit incentive. We are not aware of any Turkish cases or pronouncements that have specifically delineated further criteria for determining whether a use qualifies as being “dedicated to educational purposes.” Local counsel would be better positioned to provide more definite advice on this point. However, absent evidence to the contrary, there appears to be a very strong argument that contributions to Turkish Wikipedia should qualify as uses dedicated to an educational purpose because the goal of Wikipedia is to provide free, educational content to the public.
2.2. “Quotations” edit
The term “quotation” colloquially identifies an excerpt of writing or speech that is attributed to the author or speaker. However, Article 34 specifically contemplates quotations of musical works and works of fine art, thus it is evident that the term “quotation” encompasses the notion of excerpts across various media (e.g. sampling, snippets, abbreviations) and not merely quotations of speech or text.
2.3. “In an amount justified by the purpose” edit
The size and extent of the quotation permitted in the context of Article 34 is somewhat ambiguous. Some guidance is offered by Article 34’s balancing test, requiring that the quotation be “in an amount justified by the purpose.” Though we have not found evidence of how this test has been applied by Turkish courts, this limitation also exists under the United States fair use doctrine, and has been applied to require that the amount of copyrighted material used be no greater than necessary to serve the permissible purpose. For example, generally one may not appropriate an entire copyrighted work. If you were publishing a blog post about a song, it may be appropriate to feature a snippet of the song for the purpose of presenting a specific feature or segment of the song that you are commenting on. However, were your blog post to feature a copy of the entire song, it would consume the market for the copyrighted work, because people interested in hearing the full song could fulfill this interest just by going to your blog post without being required to pay for the privilege of having access to the copyrighted work.
The question of whether a use “prejudices the legitimate interests of the author” is asking whether the use is one that the author should be entitled to object to. The rights specifically provided for in Law No. 5846, Articles 13 through 25 present examples of legitimate interests that an author would be entitled to object to. For instance, copyright holders have a legitimate interest in controlling how their work will be commercially used or adapted. An adaptation of an author’s tv show into a board game without authorization would prejudice the author’s legitimate interest in exercising his derivative work rights. Conversely, publication of an email that contains newsworthy evidence of criminal activity despite the author’s assertion of copyright would not prejudice the author’s legitimate interests.
2.5. The use must not conflict with normal exploitation of the work. edit
A determination as to whether a use “conflicts with the normal exploitation of the work” generally turns on whether the use is of a kind that the author would ordinarily receive compensation for under a licensing arrangement. For example, if one were to imprint t-shirts with a band’s album cover and proceed to sell them without permission, it would displace the author’s right to demand a fee and to profit from that commercial activity. However, were one to feature a thumbnail image of a band’s album cover in an article about the album, the copyright holder would not ordinarily expect to realize a profit from such a use. The point here is that exceptions to copyright protection are intended to permit for particularized uses of copyright work, and are not intended to destroy the value of the copyright holder’s rights.
To cite a work in the “customary manner” is a context-based determination. For instance, in most documents (as with the case of Wikipedia articles), it is customary to cite works through use of footnotes, providing sufficient information to identify the source (typically including: the name of the author, the name of the work being cited, and a page number or like information indicating where the quote may be found). Thus, it should be possible for the Turkish Wikipedia community to fulfill this requirement simply by citing the copyrighted material as it would any other source.
3. ARTICLE 35 – Quotations Exception edit
Many copyright acts refer to a right of quotation; Turkey’s laws are no exception. Article 35 of Law No. 5846 permits quotations of a work to be used in two scenarios that could apply to Wikipedia, which are addressed in turn below.
3.1. Quoting passages of a public work in an independent literary or scientific work. edit
Article 35 permits "quoting a few sentences or passages of a work made public, in an independent literary or scientific work." In this context, “literary and scientific works” are defined as
“[w]orks that are expressed by language and writing in any form,  and computer programs expressed in any form together with their preparatory designs, provided that the same leads to a computer program at the next stage”; or
“All kinds of technical and scientific photographic works, all kinds of maps, plans, projects, sketches, drawings, geographical or topographical models and similar works, all kinds of architectural and urban designs and projects, architectural models, industrial, environmental and theatrical designs and projects, lacking in aesthetic quality.” 
Considering that “works that are expressed by language and writing in any form” is a sweeping category, Turkish Wikipedia content appears to fall within the definition of “Literary and Scientific Works.” This means that the Turkish Wikipedia community can likely use quotes from published copyright-protected works on Turkish Wikipedia.
However, it should be noted that Article 35 requires proper attribution of the quoted material, specifically requiring that such attribution be made in a "manifest way.” In the case of scientific works, attribution must "mention not only the name of the work and the author but also the passage from which the quoted part has been taken."
3.2. Reproducing public works of fine art. edit
Article 35 also permits "quotations of a work" through the reproduction of "works of fine arts that have been made public and other published works, in a scientific work for the purpose of explaining its content and to the extent justified by such purpose." This means that the Turkish Wikipedia community should arguably be able to use reproductions of works of fine art to the extent necessary to explain the contents of a particular Turkish Wikipedia article.
It is worth noting that it in this context, it appears the meaning of "quotations of a work" is intended to encompass parts of or entire works of fine art. Similarly, quotations under this exception require that attribution be made in a “manifest way” as explained in the previous subsection.
4. ARTICLE 37 – Exception for News Reporting edit
Article 37 of Law No. 5846 additionally limits the exclusive rights of copyright holders. This exception has limited applicability, but is generous in the uses it permits where it does apply. The Article provides that:
“It is permitted to record parts of an intellectual or artistic work on devices enabling the transmission of signs, sounds and/or images in relation to current events, provided that this has the nature of news and does not exceed the limits of giving information. The reproduction, distribution, performance and broadcasting by devices such as radio and television of passages quoted in such a manner are free. This freedom may not be used in a way which may prejudice the legal interests of the right holder or which may conflict with the normal exploitation of the work (italics added).” 
Not all Wikipedia articles concern “current events,” but many do. The Turkish Wikipedia community might consider adopting an EDP that endorses particularly liberal re-use of copyrighted works in the limited context of articles that concern current events.
The qualification that the subject must have “the nature of news” would appear to resonate with notions of privacy and Wikipedia’s general policy of only permitting articles to be written on notable subjects. For instance, the contents of your non-famous neighbor’s diary - though undoubtedly comprising “current events” - are not newsworthy and do not belong in a Wikipedia article. Conversely, the erection of a public statue is a notable event for which Article 37 should arguably apply.
The requirement that the use must “not exceed the limits of giving information” is a limitation already imposed by Wikipedia’s core principles. To expand upon the previous example, putting a low-resolution photo of a newly-erected statue on Wikipedia for the purpose of illustrating an article regarding the statue and its reasons for being erected should arguably not be found to “exceed the limits of giving information.” Conversely, selling postcards with a photo of the statue on them would exceed the limits of that purpose.
Ultimately, where the subject of an article properly concerns newsworthy current events, Article 37 offers assurance that ordinary journalistic uses of copyrighted media would be tolerated under Turkish copyright law.
5. Regarding Non-Turkish Works edit
Per Wikimedia’s policy, if a project does not have an EDP in place, the project is “expected to host only content which is under a Free Content License, or which is otherwise free as recognized by the ‘Definition of Free Cultural Works.’” In other words, without an EDP in place, “fair use” of copyrighted content is not permitted on the Wikimedia projects.
The purpose of an EDP is to allow for specific uses of copyrighted works to the extent permitted by United States law and the laws of the country or countries where the project content is predominantly access (in this instance, Turkey). The copyright limitations under United States law are quite extensive, allowing for very permissive use of copyrighted works, as reflected in the English Wikipedia Exemption Doctrine Policy. As discussed in the sections above, Turkish law has a number of copyright limitations that should permit for “fair uses” of copyrighted content. However, to the extent Turkish copyright law permits for less in the way of “fair use” than United States copyright law, this restrictiveness must be applied to all content on Turkish Wikipedia, even if the use of the content would be permitted in the content’s country of origin.
6. Conclusion edit
In conclusion, there is much evidence suggesting that the Turkish Wikipedia community may fashion, at their discretion, an EDP that would allow for extensive use of copyrighted material in the context of embellishing and informing educative and news-oriented articles.
As a reminder, any EDP must also comply with United States law. Each work must be evaluated on a case-by-case basis due to the complexity of United States and Turkish copyright law, and the community should take care to label non-free works accordingly in order to protect re-users from accidental infringing re-use.
Before proceeding with the adoption of an official EDP, it is advised that the Turkish Wikipedia community obtain the opinion of Turkish counsel. A Turkish attorney will be better able to address important questions of Turkish law, such as: whether Wikipedia contributions qualify as being “dedicated to educational purposes”; limits as to the amount of content that may be included in a “quotation”; what constitutes the legitimate/legal interests of an author; whether the definition of “literary and scientific works” has been interpreted narrowly by Turkish courts; and whether there are any specific delimitations for terms like “current events.”
Dashiell Renaud, Legal Intern
Michelle Paulson, Legal Counsel
- 5846 sayılı Fikir ve Sanat Eserleri Kanunu (Turkish Law on Intellectual and Artistic Works) of 5 December 1951, as last amended by Law No. 4110 of 7 June 1995 and Law No. 4630 of 21 February 2001 (Turkey).
- “Copyright limitation” is the term used to describe a law that limits a copyright holder’s exclusive right to exploit a copyrighted work. The “fair use” doctrine is an example of a copyright limitation. Sections 2, 3, and 4 of this post discuss copyright limitations enumerated under Turkish law.
- In this context, the term “author” is synonymous with “copyright holder” and the term “author,” as used throughout this post, refers exclusively to the copyright holder in the work being re-used or exploited.
- Law No. 5846, Art. 34.
- Law No. 5846, Art. 34.
- Law No. 5846, Art. 34.
- Law No. 5846, Art. 34
- See Raquel Xalabarder, Study on Copyright Limitations and Exceptions for Educational Activities in North America, Europe, Caucasus, Central Asia, and Israel at 94 (2009).
- One might argue that “uses dedicated to educational purposes” should be narrowly interpreted to apply only to uses on behalf of traditional educational institutions. However, the decision of the Grand National Assembly of Turkey to use the broader term “educational purposes” rather than the narrower term “educational institutions” (as used elsewhere in Law No. 5846) suggests otherwise. Law No. 5846 has two Articles that concern copyright limitations for educational purposes. The first, Article 33, explicitly references “educational institutions” and “face-to-face instruction.” Specifically, the Turkish version of Article 33 reads “tum egitim ve ogretim kurumlarinda, yuzyuze egitim ve ogretim” (or “all educational institutions for the purpose of face-to-face education” in the English translation). The second, Article 34, instead concerns “objectives dedicated to education.” The original text reads “hal ve vaziyetinden egitim ve ogretim gayesine tahsis edildigi anlasilan” (or “dedicated to educational purposes” in the English translation). While Article 33 would likely not apply to Wikipedia contributions for the reason that there is no face-to-face instruction, and because Wikipedia is not a traditional educational institution, Article 34 uses distinguishable, broader language that should encompass contributions to Wikipedia, because it is activity dedicated to an educational purpose.
- Law No. 5846, Art. 34.
- This is merely a hypothetical example, not based in case law. We do not have evidence of how this requirement has been interpreted by Turkish courts.
- This interpretation is derived from principles of United States and international copyright law. We do not have evidence of how Turkish courts have applied this restriction in practice.
- E.g., right of first publication, authority to designate the name of the work, and authority to prohibit modification. Law No. 5846, Arts. 14, 15, and 16.
- ‘’Castle Rock Ent., Inc. v. Carol Pub. Group, Inc.’’, 150 F.3d 132 (2d Cir. 1998) (holding that an unlicensed Seinfeld trivia quiz book infringed the copyrights in the show).
- See James Gibson, ‘’Once and Future Copyright’’, 81 NOTRE DAME L. REV. 167, 216-220 (2005).
- These are merely hypotheticals posed for the purpose of fleshing out this concept and are not grounded in facts from actual cases. We have not found any evidence of how this clause has been interpreted by Turkish courts.
- See, e.g., Texto refundido de la Ley de Propiedad Intelectual, regularizando, aclarando y armonizando las Disposiciones Legales Vigentes sobre la Materia (Revised Law on Intellectual Property), art. 32 (R.D.L. 1996) (Spain); Chosakuken Ho (Japanese Copyright Act), Law No. 48 of 1970, art. 32 (Japan); Code de la Propriete Intellectuelle (Intellectual Property Code) Art. L. 122-5 (1992) (France).
- Law No. 5846, Art. 35.
- “Herhangi bir sekilde dil ve yazi ile ifade olunan eserler” in the original Turkish. Law No. 5846, Art. 2.
- Law No. 5846, Art. 2.
- For a discussion of the meaning of “quotation” in this context, see Sections 2.2 and 2.3 above.
- Law No. 5846, Art. 35.
- Law No. 5846, Art. 35.
- Law No. 5846, Art. 35.
- See Section 2.2 "Quotations" above. We have not found evidence of whether Turkish courts have permitted including an entire work in a “quotation” or only a part of a work.
- Law No. 5846, Art. 35.
- Law No. 5846, Art. 37. For a discussion of what is meant by “prejudice to the author’s interests” and “conflict with normal exploitation of the work,” see Sections 2.4 and 2.5 above.
- These are merely examples presented for the purpose of guessing how a Turkish court would apply this principle, and are not based in case law. We have not found evidence of how Turkish courts have interpreted this provision in practice.
- This is merely an example, not based in case law. We have not found evidence as to what forms of uses Turkish courts have found to “exceed the limits of giving information.”
- See the Wikimedia Foundation Board of Trustees Licensing Policy, passed March 23, 2007.
- See the discussions of Law No. 5846, Articles 34, 35, and 37 in Sections 2, 3, and 4 above.