Copyright Infringement — Blocking of Access

REPUBLIC OF TÜRKİYE

COURT OF CASSATION

11TH CIVIL CHAMBER

Merits No: 2018/5191

Decision No: 2019/6332

Date of Decision: 09.10.2019

SUMMARY: The lawsuit pertains to claims for the removal (ref) and prevention (men) of infringement upon economic rights arising from copyright ownership, blocking of access to specific links, statutory copyright compensation pursuant to Article 68 of the Law No. 5846 on Intellectual and Artistic Works (FSEK), and publication of the judgment, on the grounds that works whereof the plaintiff holds rights in the capacity of producer pursuant to Article 80 of the FSEK were published on the internet without authorization by the defendant hosting provider.

Although it is accepted that a hypothetical contractual relationship is created between the parties due to awarding 3-fold copyright compensation in favor of the plaintiff party pursuant to Article 68 of the FSEK for the defendant's unauthorized uses, because the awarded compensation pertains strictly to uses occurring up to the date of judgment and does not cover uses subsequent to the judgment, and given that a decision was rendered for the prevention of infringement, access to the links must also be blocked in order to execute the prevention order. In this respect, while the request for blocking access to the links ought to have been accepted, establishing a decision based on erroneous reasoning was not deemed correct, necessitating the reversal of the judgment in favor of the plaintiff.

ACTION:

Upon the request of the plaintiff's counsel for an appellate examination of the decision dated 24/05/2018, Merits No. 2017/323, Decision No. 2018/191 rendered by the İstanbul Anadolu 1st Intellectual and Industrial Property Rights Civil Court complying with the reversal decree, and upon understanding that the appeal petition was submitted within due time, after listening to the report prepared by Reporting Judge ... for the case file, and after reading and examining the petition, pleadings, hearing minutes, and all documents in the file, the necessity was deliberated:

JUDGMENT:

The plaintiff's counsel asserted that various episodes of animated films titled "Pepee", "Ayas", and "Leliko"—whereof the plaintiff holds rights in the capacity of producer pursuant to Article 80 of Law No. 5846 (FSEK)—were recorded/reproduced in the cache memory of the defendant's website with the domain name www.izlesene.com without obtaining permission from the plaintiff and communicated to the public; thereby filing a lawsuit requesting the collection from the defendant of 150,000 TL (3 times the hypothetical licensing fee of 50,000 TL) pursuant to FSEK Articles 66, 68, and 69 together with the highest rediscount interest, the publication of the judgment, and the blocking of access to the website.

The defendant's counsel requested the dismissal of the lawsuit, defending that his client is a hosting provider (yer sağlayıcı); that the subject contents were uploaded by content providers, not by his client; and that the plaintiff initiated the lawsuit without serving any prior notification to his client.

Based on the reversal decree and the entire scope of the file, the Court rendered a partial acceptance of the lawsuit on the grounds that:

• The animated films titled "Pepee" belonging to the plaintiff and reflecting the author's individuality possess the character of a work under the branch of "cinematographic works" pursuant to Article 5 of Law No. 5846 (FSEK);

• The animated films whereof the plaintiff holds copyright were published at the link www.izlesene.com/pepee without authorization and despite warning;

• In this manner, the plaintiff's rights of reproduction and communication to the public were violated;

• The benchmark value obtainable from the defendant's publication of the work is 100 TL per episode, and the defendant published 29 episodes without authorization;

• For these reasons, the plaintiff is justified in claiming a 3-fold fee pursuant to Article 68 of the FSEK;

• However, because claiming a 3-fold fee under FSEK Article 68 precludes a claim for removal (ref), the request for removal is not justified, and consequently, the request for preventing access to the links is likewise not justified;

• Furthermore, because the plaintiff lacks legal interest regarding requests for the prevention (men) of unauthorized broadcasts subsequent to the lawsuit date and the publication of the judgment, these requests are also not justified;