Computer programs are defined as an "artistic work" and protected under Copyright Law according to an amendment made in 1995 to Law on Intellectual and Artistic Works (the "Law"). Article 2/1 of the Law states that "All forms of computer programs and their preparatory designs that will lead to a computer program at the next stage" shall be deemed as a literary and scientific work.
The draft amendment provided for a change to this 22 year-old provision and regulates computer programs as follows: "4. Any form of computer program including preparatory design work from which a computer program can result at a later stage".
The characterization of existing provision with regards to "preparatory design" caused serious discussions in doctrine and it has been emphasized that the expression of Directive 91/250/EEC on the Legal Protection of Computer Programs was mistranslated. It was further stated that in order to comply with the Directive, the term should be amended within the scope of Twinning Project.
The relevant definition was defined in the Preamble of the Directive as follows: "Whereas, for the purpose of this Directive, the term 'computer program` shall include programs in any form, including those which are incorporated into hardware; whereas this term also includes preparatory design work leading to the development of a computer program provided that the nature of the preparatory work is such that a computer program can result from it at a later stage..."
The same definition was used with a slight change in preamble of the new Directive 2009/24/EC on the Legal Protection of Computer Programs.
While adapting this frame of computer programs to the Law, the phrase is defined in a wrong way. The Directive states that computer program term includes "the preparatory design work leading to the development of a computer program"; draft amendment allows room for two different interpretations. The draft amendment uses the word "including" which may be deemed as preparatory design being included in the computer program or it may be read as preparatory designs being "one of the forms of computer programs".
First of all, it should be stated that preparatory design is not a form of a computer program. "Source code" or "object code" may be given as examples of forms of a computer program. Form of a computer program is the format in which the compute program written in a programming language is turned into machine language.
On the other hand preparatory design, even if it is completed, is not a form of a computer program. Defining preparatory design, which consists of different stages such as description of program, general design, detailed design or flowcharts, as computer program format would be an incorrect approach.
The computer program will only begin to be written after the detailed preparatory designs and flowcharts are finalized. In fact, the artistic side of the computer program shall arise during the writing phase according to the software developer's characteristic. For that matter different computer programs with different codes may be written based on the same preparatory design. That is why the draft amendment should stipulate the relevant provision in a more precise way and the preparatory design should be deemed as "included in the computer program" and not interpreted as a separate form of a computer program.
This amendment would also have other effects. According to the existing provision, preparatory design is protected as a separate "work". People who participate to preparatory design are not always computer programmers, other personnel with knowledge in program's are of use or business management also take part in preparatory design phase. In the current situation, these people are joint authors of the preparatory design. However if the draft amendment is enacted, preparatory design will be deemed within the scope of a computer program and people who take part in preparatory design phase will be able to claim authorship over the computer program.
If the people who joined the artistic work (of preparatory design or compute program) are permanent employees of a company and/or brought together by a company, all rights of computer program shall be used by such company according to article 10 and 18 of the Law.
Among all, it should be noted that use of rights and authorship are different concepts and these definitions may give rise to other problems in practice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.