Nowadays, one of the significant activity areas of startup companies is software production. However, how software should be protected legally is not fully understood by company founders. Poor management of the intellectual rights of software can lead to these startups facing significant lawsuits in the later stages, and/or being unable to secure investment, and/or being unable to pursue certain initiatives they intend to undertake. Therefore, as Gemicioğlu Law Firm, we have deemed it appropriate to prioritize this issue.

Software is considered an artwork. In other words, it is an intangible asset. To understand the concept of an artwork, it is necessary to first understand the approach in times when works were not recognized. In ancient Rome, the ownership of a painting on wood belonged to the owner of the wood, not the painter. Intangible assets were not recognized. With the invention of the printing press, the owner of the printed work was considered to be the printer[1]. The term “copyright” derives from this context. The first regulation recognizing ownership of works was in England in 1709, followed by the United States in 1790. In Turkey, the issue is regulated by the Copyright Regulation of 1857, the Copyright Law of 1910, the Berne Convention of 1995, and the Law on Intellectual and Artistic Works of 1952, with various amendments made over the years[2].

Article 1/B of the Law No. 5846 on Intellectual and Artistic Works (FSEK), under the heading of definitions, in paragraph (a), defines a work as: “A product of thought and art which carries the characteristics of its owner and is considered as scientific and literary, musical, fine arts or cinema works.” Software is considered a work under this law.

For software to be considered a work, it must have an objective element, meaning it must be perceivable, a subjective element, meaning it must carry the characteristics of its owner, and a formal requirement, meaning it must be defined under FSEK. However, when it comes to software, the personal element is established by its creation by a natural person. There is no requirement for the registration of software.

According to Article 1/B-g of the Law on Intellectual and Artistic Works, a computer program is defined as: “A series of commands arranged to enable a computer system to perform a specific process or task, and preparatory works leading to the formation and development of this series of commands.” This means that certain stages in the production of software are not covered by legal protection.

In the production stages of software, there are the idea stage, flowchart, algorithms, source code, object code, and interface stages. The idea stage of software is not under legal protection. Preparatory designs are covered by legal protection only if they result in a functioning computer program. Program flowcharts can be included in the concept of “preparatory designs leading to a program” as mentioned in FSEK Article 1 and can be protected legally. Codes are protected under FSEK as FSEK Article 2/I explicitly include “computer programs expressed in any form.” Algorithms are not protected because they are abstract. Object code is protected. However, interfaces are not protected unless they meet other criteria, such as having new distinguishing features like aesthetically, functionally, or artistically protectable menus and icons, they can be protected as works[3].

In conclusion, the legal protection of software is not unlimited. This view is also reflected in the practice of the Supreme Court. In the decision of the 11th Civil Chamber of the Supreme Court, numbered 2015/1510 and 2015/8419, dated 17.6.2015, it was stated: “According to the court, based on the claims, defenses, expert reports, and the entire file, the source and object codes of the ‘Student Affairs Automation and Software Services – O.’ program created by the defendant and placed on the T. University web base and the source codes, database structure, database access logic, and software architectures of the plaintiff’s program are completely different, there is no matching file, there are similarities in the interface main page designs, but the plaintiff’s interface is not considered a fine art work and there is no design registration made under the Decree Law No. 554, and on the other hand, there is no lawsuit filed due to the appearance of the web page itself, and the court ruled to reject the main and consolidated case on the grounds that there was no infringement of the plaintiff’s rights under FSEK stemming from the computer program considered a work.[4]”

In the continuation of our writing series, the intellectual rights related to software will be addressed.

For detailed inquiries, you can contact Gemicioğlu Law Firm.

Gemicioğlu Law Firm

Attorney Dr. Bora Gemicioğlu

 

[1] Pelin Özkaya; Refik Samet, Yazılım Ürünlerinin Telif Hukuku Kapsamında Korunması, Uluslararası Bilgi Güvenliği Mühendisliği Dergisi, C.6, No. 1, s. 17-34, s.18.

[2] Özkaya; Samet, s.18.

[3] Özkaya; Samet, s.20-23.

[4] For the decision, please see www.lexpera.com.tr.