Use First, Pay Triple Later: How Turkish Copyright Law Punishes Unlicensed Use

Why This Matters: A Primer for the Uninitiated
Imagine a company installs engineering software on four office computers without buying licences, a publisher reprints someone else's translation, or a hotel plays recorded music in its lobby without a licence from the collecting society. Under most legal systems, the rights holder would have to sue in tort and prove the loss actually suffered — often a difficult, expensive exercise. Turkish law takes a different and considerably harsher route. Instead of asking "what did the victim lose?", it asks "what would the infringer have paid for a licence?" — and then lets the rights holder demand up to three times that amount. No proof of loss is required, and no fault on the infringer's part needs to be shown.

The mechanism behind this is elegant and slightly counter-intuitive: the court pretends that a licence agreement was concluded between the parties. This legal fiction cuts both ways. It hands the rights holder a deterrent, penalty-like payment with a generous ten-year limitation period; but because the infringing use is retroactively treated as licensed, the rights holder gives up the right to have the infringing copies seized or destroyed. For anyone doing business in Turkey — software users, publishers, broadcasters, hotels, e-commerce sellers, marketing agencies — understanding this trade-off is essential, whether you are enforcing your rights or defending against a claim that may triple overnight.

The remainder of this article sets out the statutory framework and the principles developed by the Turkish Court of Cassation in decisions spanning 2013 to 2026.

Few provisions of Turkish intellectual property law generate as much litigation — or as much doctrinal debate — as Article 68 of the Law on Intellectual and Artistic Works No. 5846 (FSEK), known in practice as the "treble royalty" or "three-fold compensation" remedy. The sections below summarize the statute itself and the case law of the Court of Cassation (Yargıtay), including its General Assembly of Civil Chambers (HGK) and the 11th Civil Chamber.

The Statutory Text
Article 68/1 FSEK provides, in translation: "From those who, without obtaining written permission from the rights holders in accordance with this Law, adapt, reproduce, distribute reproduced copies of, perform, or communicate to the public by any device enabling the transmission of signs, sounds or images, a work, performance, phonogram or production, the rights holders whose permission was not obtained may demand up to three times the amount they could have demanded had a contract been concluded, or up to three times the market value to be determined under the provisions of this Law."

The remedy sits within the "removal of infringement" (tecavüzün ref'i) chapter of the statute, alongside the general provision of Article 66, whose fourth paragraph instructs the court to take into account the economic and moral rights of the author, the scope of the infringement, the existence and degree of fault, and the probable losses of the infringer, when deciding on measures for removal. Article 69 governs injunctions against threatened (future) infringement (tecavüzün men'i). Article 70 contains the classic tort-based remedies: paragraph 1 provides moral damages for violation of moral rights; paragraph 2 provides fault-based material damages; paragraph 3 allows the rights holder to claim disgorgement of the infringer's profits. Article 68/6 adds that a person claiming the fee "may assert all rights and powers he would have had if he had concluded a contract with the infringer."

The Legal Nature of the Remedy: A "Civil Penalty" Built on a Fictitious Contract
The leading decision is the HGK judgment of 30 June 2020 (E. 2017/71, K. 2020/483), arising from the unlicensed public communication of a musical work in a hotel. The General Assembly characterized the treble fee as a statutory penalty designed to deter the infringer — not a criminal penalty or a penalty clause in the sense of Article 179 of the Code of Obligations, but a pure private-law sanction, a "civil penalty" (medeni ceza). A second function is evidentiary: the treble fee relieves the rights holder of the burden of proving actual loss, so that unprovable damage does not remain on the victim.

Conceptually, the claim rests on a fictitious (hypothetical) contract: by electing the Article 68 remedy, the rights holder is deemed to have consented, retroactively and only for the uses in dispute, to a contractual relationship with the infringer. The consequences of this construction are far-reaching and were spelled out by the HGK:

The claim does not require fault. Fault-based compensation belongs to Article 70/2, and the two cannot be cumulated for the same use; only if the treble fee falls short of the actual loss may the rights holder additionally invoke Article 70/2, subject to proof of fault.

Because a contractual relationship is deemed to exist, the ten-year contractual limitation period of Article 147 of the Turkish Code of Obligations applies, rather than the shorter tort periods. The 11th Civil Chamber confirmed this as recently as 12 February 2026 (E. 2025/4101, K. 2026/965), holding a claim over a 2013 infringement timely.

The fictitious contract legalizes the past, litigated uses. Consequently, once the treble fee is awarded, the rights holder cannot also demand seizure, destruction or other removal measures for the same uses, and — per the HGK — publication of the judgment cannot be ordered either, since no legitimate interest remains. Recent chamber practice follows suit: in a 2025 decision concerning exam questions (E. 2024/6273, K. 2025/3923) the removal claim was rejected precisely because a hypothetical contract had been established, with only a forward-looking injunction under Article 69 granted against probable future infringement, and a 5 March 2026 decision (E. 2025/4601, K. 2026/1292) reaffirmed that removal and injunction claims must be rejected where Article 68 compensation is sought. The fiction is limited, however: it covers only the economic-right uses at issue up to the date of the action; moral-rights violations and post-action infringements are not legalized.

Election of Remedies
The Court treats Articles 68, 70/2 and 70/3 as alternative avenues. The rights holder may choose either the treble fee under Article 68 or fault-based material damages under Article 70/2, and may separately claim disgorgement of profits under Article 70/3. A rights holder who wants the infringing copies withdrawn from circulation should not elect Article 68 at all, but proceed under Article 70. Moral damages under Article 70/1 remain available in parallel where moral rights (such as the right of integrity or attribution under Articles 15–17) are violated: in the architectural-project case decided on 23 June 2025 (E. 2024/6640, K. 2025/4405), the Court upheld both a trebled fee of 745,482 TL and 50,000 TL in moral damages for unauthorized alterations, noting that Article 70/1 requires no proof of pecuniary loss.

Who May Sue
Standing belongs only to the person who holds valid economic rights on the date the action is filed. In its judgment of 2 May 2019 (E. 2017/70, K. 2019/518), the HGK endorsed the principle that "the right to bring an action based on Article 68 is granted only to natural and legal persons who are valid rights holders over the work on the date of the action," and required the lower court to examine whether a pre-action termination notice from the original licensor had extinguished the claimant publisher's rights. The remedy is equally available to holders of neighbouring rights under Article 80 — performers, phonogram producers, film producers and broadcasters — as confirmed in a 2015 decision concerning the unauthorized communication of satellite broadcasts.

A significant limitation emerged in the decision of 14 June 2021 (E. 2020/6195, K. 2021/5042): where the use rests on the rights holder's consent — for example, works produced on commission and delivered for use, with only the fee left unpaid — Article 68 is unavailable. The creator may claim only the single contractual fee corresponding to the actual use; awarding the treble amount in such a case was reversible error in the defendant's favour.

Calculating the Base Amount
Article 68/1 offers two bases: the fee that would have been agreed had a contract been concluded, and the market value (rayiç bedel) determined under the Act. The HGK stressed that these are not ranked alternatives; their fields of application differ. The case law has produced a set of concrete rules:

The base must reflect the actual infringing use, not the rights holder's whole catalogue. In the hotel-music case, calculating the fee on the collecting society's full tariff — as if every member's repertoire had been played — was reversible error; the base is the hypothetical annual licence fee for the one phonogram producer whose recording was proven to have been used, taking the venue's character, location and region into account.

Public-sector royalty regulations cannot serve as the yardstick in private disputes. In a 2017 decision on unlicensed use of translated works (E. 2016/3245, K. 2017/6432), reliance on the Regulation on Royalties Payable by Public Institutions was held erroneous; the fee must be fixed at market value.

Where the parties themselves concluded a contract — even after the action was filed — and no other comparable exists, that contract, adjusted for inflation, supplies the hypothetical bargain. This was the ratio of the ÖSYM exam-questions litigation resolved on 6 February 2024 (E. 2022/6451, K. 2024/782).

Professional tariffs and expert evidence are legitimate tools: the treble fee in the architectural case was computed from the Chamber of Architects' minimum-fee schedule, and in the 2025 ÖSYM case from the institution's own published royalty tariff, calculated book by book. For software, the base is the price of the version actually installed, not the current (more expensive) release (E. 2020/1595, K. 2022/9254).

Multiplier: Entitlement or Judicial Discretion?
The most persistent controversy concerns whether the court must award the full treble amount when the claimant demands it. The settled position of the 11th Civil Chamber — expressed in the 10 January 2019 decision on unlicensed CAD/CAM software (E. 2017/642, K. 2019/237) and reaffirmed in the 20 December 2022 NETCAD decision — is that the choice belongs to the rights holder: the statutory phrase "may demand up to three times" confers an option on the claimant, and the court may not substitute a lower multiple once treble compensation has been demanded. In the 2019 case, awarding only the single-fee amount despite an express treble claim was reversed in the claimant's favour.

Strong dissents in both decisions argue the opposite: since Article 68 sits under the "removal of infringement" heading, Article 66/4 gives the court discretion over the scope of the infringement and the degree of fault, and the Constitutional Court held in its decision of 28 February 2013 (E. 2012/133, K. 2013/33) that the provision merely sets an upper limit within which the judge exercises discretion in light of the file and the claim. Occasionally that view has prevailed in outcomes: in a 2013 decision concerning 45 images copied from a humour website onto a national newspaper's site (E. 2012/17889, K. 2013/16367), the Court affirmed a judgment that had computed the treble amount (4,500 TL) but reduced the award to 3,000 TL under Articles 43–44 of the former Code of Obligations because the defendant, though exceeding the bounds of news reporting, was not grossly at fault. The tension between these lines of authority remains a live issue for advocacy on both sides.

Procedural Points
Several recurring procedural rules round out the picture. Interest runs from the date of the action for the amount originally claimed and from the date of amendment (ıslah) for the increased portion; commercial (advance) interest applies where the dispute qualifies as commercial under Articles 3, 4/1-d and 19 of the Commercial Code. An Article 68 claim may be brought as an action for an unquantified debt, with the amount raised later. Following the 2020 amendment to Article 177 of the Code of Civil Procedure, amendment of the claim is possible even after a Court of Cassation reversal, until the close of the evidentiary phase — but where the defendant raises a limitation defence against the increased amount, the court must rule on it expressly; in a fully amended action, the amended claim is deemed filed on the date of the original action. Finally, an acquittal or non-prosecution decision in parallel criminal proceedings does not preclude a civil finding of infringement.

Conclusion
Article 68 FSEK gives rights holders a powerful, fault-free remedy whose logic is contractual rather than delictual: the infringer is treated as a licensee who must pay a deterrent multiple of the fee he avoided. The price of that fiction is the loss of removal remedies and publication of the judgment for the litigated uses, while its reward is a ten-year limitation period and freedom from proving loss or fault. The decisive battlegrounds in practice are standing on the date of the action, the existence of consent, the evidentiary basis of the hypothetical fee — comparable contracts, professional tariffs, expert valuation — and the still-contested question of whether the treble multiplier binds the court. Any litigation strategy under Article 68, on either side of the "v", should be built around these axes.