Novell's Turkish distributor, Armada, sued a Turkish Parallel Importer for parallel import, copyright violation and unfair competition. The Turkish parallel importer had offered Novell products, which were imported into Turkey from unknown sources. The parallel import also involved unauthorised use of the Novell trade name and trademarks creating a link to Novell which does not exist.
The Parallel Importer defends his position by claiming that the domestic exhaustion of copyright extends to imports into Turkey. This argument is based on the Article 23/2 of the Copyright Law which states " resale or distribution of software products following exhaustion of the copyright, does not breach the copyrights of the Owner." On the other hand the Article 23/1 states that "in the event of the works produced abroad are brought in Turkey, the right to distribute and to benefit lies with the Owner".
In the market, at times it is asserted that Article 23 of Act 5846 made an exception to the above. It is also said that the import of original software copies is subject to the approval of the copyright holder so that the latter could prevent parallel import.
The text of the Article 23 was amended by the Article 9 of Law No. 4110. The text accepted by the Parliament is the text accepted by the National Education Committee, making changes to the text as proposed by the Government and accepted by the Justice committee. The justification of the changes is explained in the minutes; "The right of import, conditioning the import of the copies produced under the permission of the owner, to the import permission of the owner, does not take place in the draft, because it is not found to be beneficial for the Country's Culture. However, the article has been redrafted in order to prohibit and prevent the import of pirate copies, because such importation violates the rights of the owner and relates to piracy. The article has been accepted by the committee as redrafted."
The lawmaker did not allow the owners to prohibit parallel import of copies of their work made with their consent. However, the Law clearly recognises that the right to distribute and benefit from copies of his work lies with him when they are imported into Turkey. As the parallel import is done in order to resale or distribute in the country, the owner may prevent resale or distribution exercising his rights under this provision. Accordingly although import of legal copies of software may not be prevented, these products may not be distributed or resold without the permission of the owner of the work even though they may have been produced abroad with his permission.
This is as a result of the nature of the software. The Owner has personal and proprietary rights over the work. He may give license to other for use of the work, but a license only entitles to use within the conditions of the license. License is an agreement which gives right to use of the software. It is a personal right irrespective of place and jurisdiction. However the software remains as the property of the owner. The owner's right over the software gives him a monopoly to deal with the work. His proprietary rights may be restricted only where the law so states. Limitations on the proprietary rights of the owner have been set out in the articles 30 to 47 of the Copyright Law. Among these there are no provisions to restrict the owner's monopoly on his work.
Article 23 states that the owner has the sole right to distribute and to benefit on importation of original products. This provision confirms the owner's monopoly over the work. Consequently a parallel importer may import original products for his own use but he does not have the right to distribute and to benefit from the work.
However the right to distribute and to benefit from imported copies of works lies with the owner. The owner may require the parallel importer to cease distribution of the products imported. When it is apparent that the parallel import is for the purpose of resale of for distribution it should be prevented by precautionary injunctions. In addition to this parallel imports, may also involve a number of other breaches and violations that in turn may entitle the authorised distributors and producers to sue the parallel importers.
The content of this article is to provide only a general information on the subject. Legal advice should be sought for any specific circumstances.
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