How are material and non-material damages calculated in copyright infringement cases?

ENTRANCE

The Law on Intellectual and Artistic Works (FSEK) grants the author both financial and moral rights. In cases of copyright infringement, the author can file lawsuits for damages. So, how can someone who has suffered copyright infringement claim compensation for the damages they have incurred? What factors determine financial and moral damages? In this article, we will evaluate how the items of damage are determined in cases of copyright infringement, both theoretically and practically, and explain it through a fictional case study.

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1. What is Copyright?

Copyright is the totality of rights that arise when a person creates an intellectual or artistic work. These rights are divided into two main categories:

• Financial Rights: These are the rights to reproduce, distribute, perform, and transmit the work to the public through means of sound, sign, and image transmission.

• Moral Rights: These are personality rights such as the right to have the author's name indicated, the right to a title for the work, and the right to protect the integrity of the work.

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2. What is Copyright Infringement?

Copyright infringement is the unauthorized use, reproduction, publication, modification, or damage of a work to its moral rights.

The types of violations are as follows:

• Unauthorized reproduction or distribution of the work

• Not mentioning the author's name

• Altering the work without the owner's permission

• Presenting the work as if it were someone else's work

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3. Types of Compensation and Calculation Criteria

According to Article 70 of the Law on Intellectual and Artistic Works, in cases of copyright infringement, material and moral damages can be claimed.

3.1. Monetary Compensation

Monetary compensation is the equivalent of the actual economic damage suffered by the author. This damage can be calculated in three ways:

a) Actual damages suffered by the copyright holder:
These are tangible damages such as the inability to sell the work due to the infringement, and the loss of licensing revenues. In this case, the rights holder's past earnings, sales data, and canceled contracts are taken into consideration.

(b) Profits obtained due to infringement:
The profit obtained by the person or entity committing the infringement from the unauthorized use can be determined, and this amount can be claimed as compensation.

c) License fee based on market value:
The calculation is based on the average fee that would have been payable if the violation had occurred while holding a license.

3.2. Non-pecuniary damages

Moral damages are claimed for the distress, sorrow, and loss of reputation suffered by the author as a result of the violation of their personal rights. In calculating this damages;

• The genre and significance of the work,

• The nature and duration of the violation,

• The author's public recognition,

• The psychological and social impacts of the violation are taken into consideration.

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4. Practical Calculation Example (Fictional Case Study)

EVENT:

Graphic designer X created an original logo and displayed it in their portfolio. Software company Y used this logo without permission in a commercial application and disseminated it through their website and social media.

X's Compensation Claims:

Calculation of Monetary Compensation:

• License Fee Approach: Company X licenses similar designs for an average of 15,000 TL. This fee may be charged for unauthorized use by Company Y.

• Unfair Enrichment Approach: Y conducted an advertising campaign with this logo worth 500,000 TL. Assuming the impact of the image used in the campaign is 20%, a share of the 100,000 TL profit can be claimed.

• Actual Damage Approach: X was about to sell the same design to another company when the agreement was cancelled due to a breach. This results in a loss of 20,000 TL.

Conclusion: X can only choose one of these three approaches. They can claim 100,000 TL through the highest possible method, which is unjust enrichment.

Calculation of Non-Pecuniary Damages:

• The unauthorized use of X's original work from his portfolio has damaged his reputation

• Personal rights have been violated because it was used without mentioning the person's name

• The fact that a campaign with over 100,000 views on social media spread without mentioning his name led to widespread reputational damage.

For these reasons, 50,000 TL in moral damages are requested from the court.

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5. Things to Consider When Filing a Compensation Claim

• Competent Court: According to the Law on Intellectual and Artistic Works (FSEK), lawsuits are filed in the Intellectual and Industrial Property Rights Court located in the author's place of residence or where the offense was committed.

• Statute of limitations: Claims for compensation must be filed within 3 years from the date the right and the perpetrator were identified.

• Evidence: Important documents include inspection reports, social media screenshots, expert reports, and previous licensing agreements.

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6. Preventive Legal Remedies

Besides compensation, other legal avenues available against copyright infringement include:

• Sending a Warning Notice

• Application for Blocking Access (BTK/Board)

• Request for Evidence Gathering

• Filing a lawsuit for injunctive relief (to stop the violation)

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7. Conclusion

Copyright infringement constitutes not only economic damage but also a violation of personal rights. Therefore, claims for both material and moral damages are possible. The amount of compensation must be supported by concrete evidence, and the type and duration of the infringement must be carefully analyzed. Especially in the digital age, the unauthorized use of works has become widespread, making it extremely important for copyright holders to consciously protect their rights.

Gamze Akbulut, Law Faculty Student