In our previous essay on the protection of software under the Intellectual and Artistic Works Law (hereinafter referred to as “FSEK”), we discussed that legal protection is not unlimited and examined the scope of protection (https://gemicioglu.av.tr/yazilimlarin-fikir-ve-sanat-eserleri-kanunu-kapsaminda-korunmasi/). In this article, we will address the issue of software ownership.
According to Article 8 of FSEK, the real person(s) who create an intellectual and artistic work are the owners of that work.
It is possible for software to be created by more than one person. Those directly involved in the production of the intellectual and artistic work become joint owners of the software and can make decisions together regarding its use. According to Article 10/3 of FSEK, “Technical services or ancillary assistance provided in the creation of a work do not constitute participation.” In other words, those who are not directly involved in the production activity of the software do not become joint owners.
So, can a legal person be the owners of a intellectual and artistic work? Legal person cannot be owners of an intellectual and artistic work because they do not engage in intellectual effort; however, they can own the economic rights over the work[1]. At this point, it is important to mention Article 18 of FSEK. According to this article, unless otherwise agreed by a special contract or the nature of the work, the rights over works created by civil servants, employees, and workers during the course of their duties belong to the employer or the assignor. This rule also applies to the organs of legal person. Therefore, the economic rights of a software created by employees for an employer belong to the employer. An important issue is the status of software developers who are employed as freelancers. In this situation, since there is no employment contract, the rights owner is the individual who writes the software. Unless a contract is made for the transfer of intellectual property rights, the ownership rights belong to the person who wrote the software. This issue is a common problem in startup companies.
The opinion that legal person cannot be owners of a work may become controversial due to technological developments, especially in the context of software produced by artificial intelligence, as in such cases, it is the AI, not a person, that produces the software. This topic is outside the scope and purpose of our current discussion and will be addressed separately at a later time.
In our next article on software, we will discuss the economic and moral rights over software, open-source codes, software licenses, and the transfer of software.
For detailed questions, you may contact Gemicioğlu Law Firm.
Gemicioğlu Law Firm
Attorney Dr. Bora Gemicioğlu
[1] Ünal Tekinalp; Fikri Mülkiyet Hukuku, Vedat Kitapçılık, 5. Basım, İstanbul, 2012, s. 144 ; Pelin Özkaya; Refik Samet, Yazılım Ürünlerinin Telif Hukuku Kapsamında Korunması, Uluslararası Bilgi Güvenliği Mühendisliği Dergisi, C.6, No. 1, s. 17-34, s.23.
