Moral Rights: Is There an Exception for Software?
Cross-border transactions on software are very common due to global trends in technology. The Berne Convention and the TRIPS Agreement have largely achieved basic harmonization in terms of economic rights. However, each jurisdiction has different principles regarding moral rights. These discrepancies may place cross-border transactions at risk of invalidation.
1. The Berne Convention
The Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) sets forth that, independent of the author's economic rights and even after the transfer of economic rights, authors shall have (i) the right to claim authorship of the work and (ii) to object to any distortion, mutilation, other modification of, or other derogatory action in relation to said work that is prejudicial to their honor or reputation. Per the same article, the means of redress for safeguarding moral rights shall be governed by the legislation of the country where protection is sought. The contracting parties to the Berne Convention are obligated to introduce moral rights into their domestic laws; however, the scope of moral rights significantly varies in each state depending on the legal traditions.
It is widely accepted that the importance attributed to moral rights is more prevalent in Continental Europe. Such author-centered jurisdictions consider it fair that the creators of the intellectual creation hold control over their works.
There are also society-oriented approaches to moral rights, particularly in Anglo-American jurisdictions where the focus is rather on the creative endeavors for the greater good. Under such legal systems, creativity is protected while ensuring that society as a whole has access to information and knowledge.
In most jurisdictions, moral rights cannot be waived by authors. Consequently, authors retain control over their moral rights and may still exercise their moral rights after having transferred and/or licensed their economic rights to a third party. This may pose an obstacle to incentivizing software development and follow-on innovation. It is feared that the authors may exercise their moral rights to the detriment of the rightful holder of the economic rights (i.e., against employers commercializing software developed by employees).
To offset such difficulties, some jurisdictions, such as France, have limited authors’ moral rights arising from computer programs. Some other jurisdictions do not even grant moral rights to software, such as the USA. The situation is a little more complicated in Turkey.
Turkish law is an author-centered jurisdiction. Moral rights are recognized under Law No. 5846 on the Protection of Intellectual and Artistic Works (“Copyright Code”) for all works. The Copyright Law does not draw any distinction between the authors of computer programs and other categories of work, e.g., cinematographic works or musical works. However, moral rights manifest themselves differently according to the nature of the category of work concerned.
Under Turkish Law, the principle is that authors cannot waive their moral rights under any circumstances or transfer their moral rights to third parties under any means, e.g. by entering into contracts with transferees. Any contractual clauses to the contrary would be deemed invalid. Notwithstanding the foregoing, authors are allowed to ‘transfer the authority to exercise their moral rights’ to third parties under Turkish law. However, this should not be interpreted as an unlimited authority based on the legal precedent below:
“The moral right to prohibit modification is a personal right due to the relationship between the work and its author. This right cannot be transferred to third parties, and even in cases where the authority to exercise this right is transferred to third parties, it should not be exercised in a manner that the author’s connection with its work is severed or in a manner that another party is introduced as the author. Any transactions to the contrary would be deemed invalid.”
This ruling hints that moral rights are treated as ‘personal rights’ under Turkish law. On a separate note though, the subject matter of this decision concerns a section in a book.
The implementation of the Copyright Code is different when computer programs are the subject matter of the dispute. This is mainly because computer programs are devoid of artistic qualities. To most, computer programs are a technical creation as they are not aesthetic. Computer programs are only readable to those who are trained in the subject matter, such as software developers. This certainly is not the case for creations such as musical or cinematographic works since they have the ability to excite feelings in individuals who are not trained in the arts.
Apart from such considerations, especially in mid to large-scale companies operating in the software industry, computer programs are created as a result of teamwork, either by employees or sub-contractors. It may not be practical to refer to each and every author by name. It may also be difficult to duly obtain each author’s approval to disclose the work to the public. It is also customary practice not to list the names of the joint authors to a computer program for feasibility purposes. There are exceptions to this, especially when the end result is of an artistic quality, e.g. computer games. However, the right to claim authorship of the work is largely ignored in the software industry. This is at odds with the imperative provisions of the Copyright Code, which does not make any exceptions for authors of computer programs.
Scholars and legal precedents have a more flexible approach. For instance, in one ruling related to employee works (software), the Turkish Court of Appeals stated that although the employer is not entitled to the moral rights arising from the work, the employee should refrain from exercising their moral rights in a manner intrusive to the employer’s exploitation of the economic rights – otherwise, the economic rights that are automatically granted to the employer would prove useless. The court also argued that computer programs are generated as a result of teamwork where numerous individuals contribute to the characteristics of the work and that the common purpose is that the computer program becomes ‘commercially implementable’. The same ruling recognized the fact that there is no customary practice in the software industry to mention or display authors’ names.
This decision tackles the hurdles faced by legal practitioners in the software industry. However, the importance attributed to ‘commercial implementation’ drifts away from the general rationale behind the Copyright Code. Instead, it leans towards an approach we see in patent law where ‘industrial application’ is a decisive criterion in terms of eligibility for patent protection.
Some legal scholars argue that there should not be an obligation to display the names of the authors in computer programs and works generated from computer programs due to the nature of the business. This scholarly opinion has very recently served as grounds in a Court of First Instance decision in a lawsuit initiated by an author of a computer program.
By limiting the scope of moral rights for computer programs through case law, the Turkish legal community started shifting from its traditional approach towards an –arguably- commercially practical one. Amid such developments, to be on the safe side, copyright license or assignment agreements should be drafted with caution (e.g., legal practitioners should not undermine moral rights to computer programs in license or assignment agreements) since there is no legal framework under Turkish Law that explicitly justifies limiting the moral rights arising from computer programs.
 Decision of the 11th Civil Chamber of the Turkish Court of Appeals, Date: 13.09.2012, E. 2011/5707, K. 2012/13237.
 Decision of the 11th Civil Chamber of the Turkish Court of Appeals, Date: 01.04.2015, E. 2014/18703, K.2015/4512.
 Levent Yavuz, Türkay Alıca and Fethi Merdivan, Fikir ve Sanat Eserleri Kanun Yorumu, (1-47. Maddeler) Cilt I, Doktrin ve Yargıtay Kararları Işığında Açıklamalı Karar Özetli FSEK Şerhi, (Ankara: Seçkin, 2013), 371-372.
Decision of the 1st Bakırköy Civil Court of Intellectual and Industrial
Property Rights of First Instance, Date: 18.03.2021, E. 2021/14, K. 2021/77.