Copyright Considerations for the Turkish TV Show Industry in the Age of Streaming
Bentley James Yaffe,Sila Ozge Sayli,Mehmet Enes Polat
In 1981 the Turkish-made TV series Aşk-ı Memnu was exported to France, and thus began the journey of exporting Turkish content. Since then, Turkey has developed into an important and prominent exporter of TV content and, according to figures collated by the Anadolu Agency in 2019, has become the second largest exporter of such content after the USA.
While handsome actors and talented screenwriters and directors have played an important part in Turkish TV content’s rise to prominence, developments surrounding the establishment and protection of copyright and intellectual property rights in Turkey under the Law on Intellectual and Artistic Works should not be overlooked as an underlying basis that provides the certainty and clarity that has allowed this industry to thrive. However, despite the positive impact of the applicable legislation, particularly with the utilization of streaming platforms and the increased global reach they provide, certain areas that require development have become apparent.
Digital platforms have provided increased opportunities to introduce Turkish content to new audiences. The Turkish content market has also benefited from competition between established international streaming platforms and newer Turkish rivals.
Netflix has been particularly active in this area, commissioning a number of original Turkish works exclusive to them, such as Atiye (the Gift) and Hakan: Muhafız (the Protector). However, moving to streaming platforms and providing them with “exclusive” content has led to an increase in online piracy that detrimentally impacts the works’ rights holders.
The Law on Intellectual and Artistic Works provides methods of addressing these acts of infringement and the necessary rights of recourse. As per Temporary Article 4 of the Law, a notice and takedown model is implemented to remove such infringing content. At first instance a request is made to the content provider. However, if the content provider does not respond within three days, the rights holder can make an application to the prosecutor’s office to prevent access to the relevant platforms. In practice, as the infringing content is most frequently distributed by content providers that are outside of Turkey, an application for the prevention of access is required in order to prevent such infringing distribution. In addition to the application to prevent access, rights holders can also claim compensation.
Furthermore, with recent developments introduced in Turkey through the Social Media Law amendment, increased opportunities to issue content removal orders are now available and stricter obligations have been imposed on social network providers to respond to any claims of infringement. These new opportunities may also be utilized by rights holders to ensure quicker takedown of infringing content.
The increasing volume and value of Turkish content exported and exploited globally has required a re-evaluation of the framework provided by the Law on Intellectual and Artistic Works; particularly regarding the rights of performing artists.
Neighboring rights of performing artists were first recognized in Turkey with a change to the law introduced in 1995. Since then the implementation and interpretation of this provision has taken shape and while it has provided a number of neighboring rights, the complicated nature of content production frequently leads to performers being disadvantaged.
In practice, mainly due to longstanding convention, performers transfer their rights to producers, usually at the point of the content’s conception. Even though as per the applicable legislation in Turkey, signing away such rights before a work has been created is null, there are frequent examples in the industry. Therefore, performers whose efforts constitute an integral part of a work are unable to receive separate residual payments due when the content is rebroadcast or broadcast on different platforms.
The opportunities and scope for rebroadcast provided by streaming platforms has led to increased complaints that the model creates an unfair imbalance within the industry, with some performers labelling it exploitative. There have been increased demands for more detailed provisions in the Law on Intellectual and Artistic Works that will provide increased protection to stakeholders such as screenwriters and actors when works are re-broadcast on any platforms after the transfer of their material rights.
While performing rights societies are active in the area of musical works, the existence of such rights societies is another aspect that must be considered in light of the more extensive broadcast and re-broadcast of certain content. For musical works integrated into such content, the practical implication and existence of rights societies are often overlooked leading to issues regarding rights ownership or the issuance of additional license fees.
Another impact of the prevalence of streaming platforms has been a corresponding increase in created works, some of which have started to resemble each other in tone or form as producers aim to churn out content in successful formats. While works that have been adapted from other media such as novels have benefited from copyright protection, issues surrounding the ability to copyright a format or general type of content has led to concerns from content producers unable to protect original works or concepts. As original content and exclusive content becomes even more important, a potential trend may be an increase in take down or content removal orders. Particularly with important Turkish players strengthening their positions in the area of streaming, Turkish courts may take a more protective approach.
With the increase of content production in Turkey and record breaking viewing figures abroad, the Turkish content production industry has gained significant prominence. Shifting content distribution channels to online streaming platforms will only contribute to this upward trajectory. However, as highlighted above, in order to be able to ensure that the rising tide lifts all in this industry, it is important that the multinational distribution considerations be taken into account by the producers and that ongoing issues relating to other rights holders are addressed to maintain the satisfaction and productivity of what will continue to become a cornerstone industry for Turkey.
This article was produced for Media Law International. Please see here.