As a result of the widespread use of computer programs today and their easy copying and reproduction, and of course, because of their commercial value, it seems to be a necessity to regulate this field legally in order to protect the economic benefits obtained. In various countries, legal protection of computer programs is dealt with patents, unfair competition, trade secrets and copyright aspects. In Turkey, on the other hand, it is regulated that computer programs are works of authorship and will be protected within the scope of copyright. For this reason, computer programs have become an important subject of intellectual property law in Turkey. 

According to Article 2/f.1 of Law No. 5846 on Intellectual and Artistic Works, “expression in any form computer programs and their preliminary designs, provided that they give rise to the results of the program at a later stage” are accepted as works. As can be understood from this definition, all programs, operating systems, interfaces, modules, and codes fall within the scope of the work. Only in order for the subject of protection to be considered as a work, must it be capable of producing a program result in the next stage. Algorithms, flowcharts and other items that have not yet been completed are therefore not protected as works

Legal Protection of Software in Turkey and Across the World

In the USA and some other countries, since software is regarded as technical creations rather than intellectual works, it is patented and protected under patent and utility model protection. As a result, Apple, Microsoft, IBM, Sun Microsystem and similar large companies own thousands of software patents. On the other hand, in continental European countries, as a rule, software and computer programs are considered as intellectual works and are protected under intellectual property law. In the European Patent Convention and in the legal regulations of many countries that are members of the European Patent Organisation, software is not covered by patent protection. Therefore, software is protected by patents only in the USA, while in European countries and in our country, it benefits from copyright protection. Turkey, following the legal systems of continental Europe, regulates that software is protected under copyright. 

In Turkish law, it also is clearly stated that computer programs shall be protected within the scope of copyright both by including computer programs within the definition of work and by excluding them from designs under Article 55/2 of the Industrial Property Law and from inventions under Article 82/2. 

Intellectual Rights of the Computer Program Owner in Turkey

Ownership over the work occurs automatically when the work is created. Accordingly, there is no need for any registration to establish ownership or to exercise the rights arising from ownership. However, the registration makes it easier to prove ownership. The rights of the computer program owner arising from ownership of the work are regulated in two groups as financial rights and moral rights, stating in Article 13 of the aforementioned Law that “The financial and moral interests of the owners of intellectual and artistic works are protected within the scope of this Law.”

Moral Rights Arising from Ownership of a Computer Program in Turkey

Moral rights are a set of rights that are independent of the economic interests of the author and serve mostly personal, social and cultural satisfaction.

According to the said law, the rights of the computer program owner, who has the status of author, are as follows:

• authority to offer to the public,
• authority to state the name,
• the right to prohibit changes to the work,
• rights that the owner of the work can assert against the owners and possessors of the work.

Financial Rights Arising from Ownership of a Computer Program

The rights of the owner regarding the economic and financial ties with her / his work are called financial rights. The right to benefit economically from the work belongs to the author, and third parties cannot benefit economically from the work without the permission of the author. The owner of financial rights is the owner of the work. However, the owner can transfer her / his financial rights to another with a license contract. 

These rights can be listed as;

• right to processing,
• right of reproduction,
• right to disseminate,
• representation rights.

Unlicensed use of computer programs violates the right to reproduction. The program owner, who is the owner of the work, can transfer the use of his financial rights to third parties with a license agreement. If it is stipulated in the agreement that no license will be granted to anyone other than the licensed person, the exclusive license is referred to as a non-exclusive license agreement, unless there is a limitation in this regard. The owner of the work may restrict the transfer of the authority to use financial rights in terms of time, place and content. Therefore, one or more of the above-mentioned financial rights may be subject to a license agreement.

Crime of Unlicensed Use of Software or Computer Programs in Turkey 

The unlicensed use of computer programs or software has various repercussions in the field of criminal law in Turkey. 

According to Article 71 of the aforementioned Law, anyone who reproduces a work without the written permission of the rights holders, offers for sale or sells illegally reproduced works, distributes them by renting or lending or otherwise, buys them for commercial purposes, keeps them for purposes other than personal use, or It has been regulated that the person who stores it will be sentenced to imprisonment from one to five years or a judicial fine. As such, it is a crime to use a software or computer program without a license. In addition, according to Article 72 of the said law, any person who produces, offers for sale, sells or possesses programs or technical equipment intended to neutralise additional programs created to prevent the unlawful duplication of computer programs, or keeps them for purposes other than personal use, will be punished with a prison sentence of six months to two years. 

It should be also noted here: According to Article 38 of the aforementioned Law, the person who acquires the computer program through legal means has the right to install the program, run it and correct its errors. The person who has the right to use the computer program may make one backup copy and is free to observe, examine and try the operation of the program in order to determine the thoughts and principles underlying any element of the computer program, while performing the acts of loading, displaying, running, transmitting or storing the computer program.

Lawsuits for Software Rights Infringement Damages in Turkey

There are several legal remedies that a person who owns rights on a computer program or software may apply in case of infringement of his/her financial and moral rights. 

First of all, the owner of the work whose rights are exposed to the danger of infringement may file lawsuits for the prevention of infringement in order to prevent possible infringement, and for the cessation of infringement in the presence of an ongoing infringement. In addition, the right holder whose financial right has been infringed may demand from the persons who reproduce the computer program without written permission, as financial compensation, at most three times more than the price that can be demanded in the event of a contract or the market price to be determined in accordance with the provisions of the law. If the copies are reproduced without authorisation and are not offered for sale, the owner may demand the destruction of the reproduced copies, the means for reproduction, or the delivery of the reproduced copies to her/him for an appropriate price not exceeding the production cost price, or three times more than the amount he may demand in case of a contract. If the copies are reproduced without authorisation and are put up for sale, the right owner may also assert the above-mentioned claims in respect of the copies in the hands of the infringer. The author may also claim non-pecuniary damages arising from the infringement. In addition, it is also foreseen that the person whose financial rights are violated due to the computer program may file a lawsuit for damages based on tort, as well as actions for the prevention and cessation of infringement.

Conclusion 

In conclusion, the protection of computer programs and software within the intellectual property law in Turkey is an essential aspect of safeguarding innovation and creativity in the digital age. As technology continues to advance and software becomes increasingly integral to various industries, it is imperative to establish robust legal frameworks to uphold the rights of creators and prevent unauthorised use. By recognising computer programs as works of authorship and providing copyright protection, Turkey aligns itself with international standards while ensuring that developers and owners have the necessary legal tools to defend their intellectual property rights.

How Can We Assist You? 

As Viridis Legal Partners, we apprehend the importance of protecting your intellectual property, especially in the dynamic field of computer programs and software. Our team of experienced lawyers specialises in intellectual property law in Turkey and can provide comprehensive legal support tailored to your specific needs. Whether you require assistance in copyright registration, licensing agreements, or litigation for infringement cases, with our team of intellectual law attorneys in Istanbul, we are here to safeguard your rights and help you navigate the complexities of intellectual property law in Turkey.

We offer specialised legal services for foreigners seeking intellectual property protection in Turkey, ensuring that your interests are safeguarded and your rights are protected regardless of your nationality or location.

For personalised legal advice on protecting your intellectual property rights on computer programs and software or any other legal matter, don’t hesitate to contact Viridis Legal Partners today. Our team of experienced attorneys is here to assist you.