Fair use is an important legal doctrine that permits the use of copyrighted works under certain conditions without the permission of the copyright holder. This doctrine aims to protect the rights of copyright holders while also considering fundamental societal values such as freedom of expression, education, research, and access to information.
With the widespread adoption of the internet and digital technologies, the issue of fair use has gained even more significance. The ease of sharing, reproducing, and using works in the digital environment has led to renewed discussions about the boundaries of fair use. New media tools such as social media platforms, blogs, online education platforms, and digital libraries create new challenges and opportunities in the application of fair use.
Constitutional and Political Foundations of Fair Use
The fair use doctrine is closely linked to fundamental rights enshrined in the Constitution of the Republic of Turkey, including freedom of expression (Article 26), freedom of science and art (Article 27), and the privacy of private life (Article 20).
Freedom of Expression: Fair use supports individuals' rights to freely express their thoughts, opinions, and criticisms. It allows the use of copyrighted works for quotation, criticism, review, or news reporting, thus enabling the exercise of freedom of expression.
Freedom of Science and Art: Fair use promotes scientific and artistic progress. It facilitates access to copyrighted works for researchers, educators, and students, enabling them to use these works to create new knowledge and art.
Privacy of Private Life: Fair use supports individuals' rights to manage their private lives and acquire information by allowing the reproduction and use of works for personal use.
The political foundations of fair use are based on public interest objectives, such as promoting the free flow of information and pluralism in a democratic society, preserving and enhancing cultural heritage, and supporting educational and research activities.
FSEK Article 35: The Legal Basis of Fair Use
In Turkish law, fair use is regulated by the Law on Intellectual and Artistic Works No. 5846 (FSEK). Article 35 of the FSEK contains provisions that define the fundamental principles and boundaries of fair use. According to this article, the use of a work for the following purposes may be considered fair use without the need for permission from the copyright holder:
Personal Use: Reproduction or use of the work for non-commercial purposes and personal use.
News Reporting: Making short quotations from a work or summarizing it for the purpose of reporting current events.
Criticism and Review: Making quotations from a work or summarizing it for the purpose of criticism or review.
Teaching: Making quotations from a work or summarizing it for use in educational or teaching activities.
Caricature, Parody, or Pastiche: Using a work for the purpose of caricature, parody, or pastiche.
Conditions of Fair Use
Article 35 of the FSEK also specifies certain conditions that must be met for fair use to be valid:
Type of Work: The scope of fair use may be broader for works that are scientific, technical, or academic in nature.
Nature and Amount of the Used Portion: The portion used must be a small part of the whole work and should not constitute the essence of the work.
Effect on the Value of the Work: The use must not harm the economic value of the work or reduce the demand for the work in the market.
Additionally, when evaluating the boundaries and conditions of fair use, the following considerations should be taken into account:
Four-Factor Test: The four factors specified in Article 35 of the FSEK (purpose, nature, amount, and effect) must be carefully analyzed.
Transformative Use: It should be assessed whether the use adds new meaning or expression to the original work.
License Alternatives: Before resorting to fair use, the possibility of obtaining a license from the copyright holder should be explored.
Fair use is a cornerstone of copyright law, supporting public access to information, freedom of expression, and cultural development. However, the boundaries of fair use may not always be clear, and there can be practical challenges in its application. Therefore, it is crucial for users of copyrighted works and legal practitioners to thoroughly understand the conditions and limits of fair use and to seek legal advice when necessary.
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