Turkey: Financial And Moral Rights On Computer Programs Within The Scope Of Intellectual Law

In today's world, many works are being created in digital environment as a result of the rapidly developing technology and legal disputes related to these works are emerging each passing day. For the resolution of these legal disputes, it is crucial to determine whether these digital works are within the scope of the relevant Act and to determine the rights and authorities of the authors. In the following paragraphs, the rights on computer programs within the scope of Intellectual Law will be discussed.

Under Turkish Law, computer programs are considered as "work" within the scope of Act on Intellectual and Artistic Works ("The Act")¹ numbered 5846 and included in the category of scientific and literary works under Article 2 of the Act. The moral and financial rights on the computer programs which are regulated under third part of the Act will be examined in detail hereupon.

1. Moral Rights On Computer Programs

1. Right Of Publication

Publication can be defined as deducting the work from the author's private sphere and introducing to a group of people. Herein, the introduction of the work to a small group of people by the author is also considered as publication unless this group composes of author's private sphere.

A computer program should be publicised in order to be able to benefit from the protection stipulated in the Act for works. However, pursuant to Article 14 of the Act, the right to determine whether the program will be publicised or not is entitled to the author. Also, the author has the right to determine the time and procedure of the publication.

2. Right To Be Introduced As The Author or To Avoid Naming

Pursuant to Article 15 of the Act, the author has the right to be introduced with his/her name or pseudonym along with the right to avoid sharing his/her name. In case of an amendment on this matter without the author's approval, the author is authorised to prevent the amendment.

3. Right To Prevent Alterations

In accordance with Article 16 of the Act, any alteration, addition or abbreviation to be made to the work or to the author is prohibited without the author's approval. However, there is an exception to this prohibition since the works such as computer programs need to be improved and updated constantly. Accordingly, the persons who have obtained approval from the author about the processing, presentation, reproduction, publication or representation of a computer program can make the necessary alterations required by these acts. However, despite the author's approval, the author will always have the authority to prevent the alterations that harm his/her honour and dignity.

2. Financial Rights On Computer Programs

1. Right To Process

According to the Act, in the event of any implementation, editing or alteration to be made to a computer program, the program would be regarded as a processed work. For example, making an application designed for Windows operating system compatible with Mac OS would be regarded as processing.

In the Act, the processing of a computer program is listed among the financial rights of the author. Therefore, in case of processing a program and obtaining financial benefit as a result, the approval of the author should be present. However, the person processing the program is not obliged to obtain the approval of the author provided that the processing is for self-testing.

2. Right Of Reproduction

Reproduction, which is defined in detail in Article 22 of the Act, can be briefly defined as making a copy of the work or recording it on any device that is useful for repetition. Also, acts such as electronic storage are included in the scope of reproduction.

According to the Act, the right of reproduction also belongs to the author exclusively. Also, if a program needs to be reproducted in order to carry out acts such as loading, viewing, running or storing, the approval of the author would still be required.

However, reproduction of the program for private use or for the sake of intermediation are exceptional cases. Accordingly, a backup copy of the program can be obtained for personal use, in a way that does not harm the interests of the right holder and without making any profit. In addition, reproduction of the program is permitted in our legislation in order to ensure interoperability which can be defined as ensuring that a program operates in harmony with other ones.

3. Right Of Distribution

The right of distribution is defined in the Act as renting, lending, selling or spreading the work or copies of the work. The difference between the act of distribution and the act of publicising is that the act of publicising aims to transfer the possession or the property of a program.

According to the Act, right of distribution belongs exclusively to the author just like other financial rights. However, pursuant to Article 23 of the Act, the resale of certain copies of the program after the first sale or distribution of the program has been actualized within the country does not violate the author's rights.

4. Right Of Representation

The act to representation can be defined as the presentation of a work to the public through actions such as playing, stealing, reading and demonstrating and gaining benefit as a result. According to the Act, the author has the right to represent the work both directly and indirectly. However, this rule is controversial for the representation of computer programs.

5. Right Of Public Transmission By Means Of Sign, Sound And/Or Image Transmission

In accordance with Article 25 of the Act, the right to sell a work or copies of a work to the public by means of wired and wireless image and sound transmission devices and to publish in digital media shall be exclusively owned by the author.

To sum up, in our current legal system, computer programs are considered as works within the scope of the Act on Intellectual and Artistic Works and the moral and financial rights on the programs are determined accordingly. As discussed in detail above, these rights belong exclusively to the author, except some exceptional cases, and the exercise of such moral and financial authorities would be possible solely with the approval of the author.

Footnote