The Effect of Contractual Liability Within the Context on the Evaluation of Criminal Intent During Prosecution Stage of Crimes Under Copyright Law


Within the scope of an investigation conducted by the Istanbul Public Prosecutor's Office, the plaintiffs (a songwriter and a composer) filed a complaint under Law No. 5846 on Intellectual and Artistic Works ("IAWL") against a technology company for using a portion of a video clip in its YouTube page, claiming infringement of their moral and immoral rights. The Prosecutor's Office ruled that based on the content of the contract between the media company and the technology company, as well as the agreement between the media company and the singer, and an expert report in favor of the technology firm (in a civil case for the same dispute), the element of intent was not established.

The ruling carries significance as liability clauses in promotional services agreements have a strong impact on the examination of intent, which is the moral element of infringement of financial and moral rights regulated under IAWL.

Legal Process

In the dispute at issue, the technology company facing civil and criminal actions is a global company and works with media planning firms for all kinds of marketing, advertising, and promotional activities with a "turnkey business" approach. Within the scope of the agreement between the technology company and media firm involved in the dispute, the media firm sealed a promotional services contract with a singer on behalf of the technology company.

The agreement stipulated that the tech company's products be used in a video clip for one of the singer’s songs. The singer pledged that she possessed all the rights and authorizations over the musical work to establish the specified relationship, that she had obtained the necessary permissions, and that the videos did not infringe the intellectual rights of a third party.

To market her work with the tech company's followers on social media, the singer requested that a video containing footage from the music video be prepared and shared on the tech company's YouTube page.

After posting the video, the composer and the lyricist of the musical work in question filed a complaint against the tech company under IAWL and lodged a lawsuit demanding damages for the infringement of their IP rights.

As a result of an expert examination conducted in the compensation case, it was determined that the tech company was not at fault in regards with the financial and moral rights, considering that there was a contractual provision stating that the singer held the IP rights and that there was no obligation to register the transfer of copyrights in any registry within the scope of the practice.

Eventually, the case against the tech company did not go to trial because the expert report and the examination of liability clauses in the agreement found the element of intent on the part of the company was absent.


In violation of moral, financial and related rights arising from intellectual and artistic works, the perpetrator must commit the act intentionally in order to be punished, and it is seen that there is no moral element other than intent within the scope of the crimes regulated in Article 71 of IAWL. To establish intent, the person must be aware of all the components of the action and seek the result. The absence of this element results in the inability to punish intentional offenses in terms of criminal law.

In the case of musical works, in particular, many persons including the holders of related rights, may have rights to the musical work and the performing artist alone may not be able to exercise rights such as reproduction, dissemination, and communication of the performance to the public without obtaining the author's permission.

In practice, the follow-up and confirmation of rights transfers and licenses take a long time and global companies, which are often far from the relevant sector, do not have the necessary network to ensure this confirmation. In this context, it is necessary to have detailed provisions regarding the liability for infringement of rights arising from the work in separate contracts between the media company on one side and the global companies and artists on the other.  Most of the time, even these agreements may not prevent global companies from having criminal allegations levelled against them, but agreements may also enable them to avoid liability, as in the case at hand.

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