The Turkish Supreme Court recently held that irrespective of how
they are released to the market, second-hand software sales do not
constitute copyright infringement under the Intellectual and
Artistic Works Law numbered 5846
("Law"), provided the software was
legitimately obtained by the first user.
In the dispute at hand, Party X produces software, licensing
this to other parties (OEM License). Party Y purchases a software
CD from one of Party X's licensees. While granting licenses,
Party X provides authenticity stickers which bear the
licensee's name. Party Y attaches the sticker to the computer
tower which the software is used on. At a later time, Party Y
resells the software (including user guides). In other words, Party
Y becomes a second-hand salesman and acts similar to a license
grantor for Party X's software.
In these circumstances, Party X alleged piracy and that Party Y
had obtained the software illegally. Party X filed a criminal
complaint based on this allegation. During investigations, software
and computers were seized from Party Y. Party Y initiated a civil
action against Party X (the case at hand), claiming material and
immaterial damages for the seizures. Party Y also claimed that
second-hand sale of computer software, which was legally obtained
by the primary user, does not infringe Party X's rights arising
from laws or agreements.
Party X claimed the license agreement prohibits second-hand sale
of the software. It also claimed that under the agreement,
transferring the software to third parties would only be legal if
the software is directly transferred as a whole with the device the
software was sold for.
The First Instance Court held that the license provision which
prohibits separate transfer of the original software apart from the
computer is not aimed at copyright protection. Rather, the court
held that this provision is only intended to regulate the
software's commercialization and control the second-hand
The First Instance Court ruled that Party X is technically
capable of checking which computers the software is loaded on and
which computer the software was first uploaded onto. The Court
noted that Party X could not prove the software is also used by
other users on different devices. On this basis, the Court held
that second-hand sale of the software does not infringe Party
Party X appealed the First Instance Court's decision to the
Supreme Court. However, the Supreme Court approved the lower
court's decision. The Supreme Court referred specifically to
Article 23(2) of the Law, which states: "resale of certain
copies after their first sales or dissemination is made within the
borders of the country by the transfer of their property by the
owner of the right upon the utilization of the right to disseminate
does not violate the dissemination right granted to the owner of
the work, provided that the rights to lease and lend to the public
The Supreme Court stated that the article is a mandatory rule.
It held that where such regulation exists, even if a license
agreement provision prohibits second-hand sale of computer
programs, this will not be considered to be copyright
(Case reference: Yarg. 11. HD. 30.06.2015, 2014/17376 E.,
Information first published in the MA | Gazette, a fortnightly legal update
newsletter produced by Moroğlu Arseven.
The content of this article is intended to provide a general
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