Protection of Websites Under Turkish Law
The Internet has gone beyond of its fundamental functions of providing access to information and distributing the same and become a tool for interconnecting the entire world and an irreplaceable method of meeting the most basic human needs due to the transformation it has been going through the recent years. Accordingly, websites have turned into platforms with which we make contacts multiple times every day in order to carry out our daily activities. In Turkey, being one of the countries with greatest percentage of internet penetration, there is no set of rules specifically applicable to websites, which leaves the question of how exactly websites are protected under Turkish law unanswered. This Article, aiming to establish the scope of legal protection conferred to websites under Turkish law in the light of academic studies and judicial decisions, is consisted of the parts of (i) definition and elements of websites, (ii) possible legal protection under intellectual property law, (iii) possible legal protection under unfair competition law, (iv) legal remedies in the case of infringement, and (v) conclusion.
i. Definition and Elements of Websites
Websites could be defined as a compilation of web pages located under a common domain name and made available by a server connected to the Internet. Websites are consisted of various elements such as webpage, user interface, computer program, database and server. Although there is no set of rules specifically applicable to websites under Turkish law, constituent elements and content of websites could be conferred various types of legal protection as long as legal conditions required by respective applicable laws are met.
For instance, computer program operating behind a website is protected as “scientific and literary work” pursuant to Article 2 of the Law on Intellectual and Artistic Works numbered 5846 (“LIAW”). Similarly, website’s content could be protected under other work categories listed in the ILAW subject to satisfaction of legal preconditions thereof. As constituting the main discussion point of this Article, the question of whether websites are conferred an additional legal protection separate from their constituent elements should be examined within the framework of intellectual property pursuant to the ILAW and unfair competition pursuant to Turkish Commercial Code numbered 6102 (“TCC”).
ii. Protection under Intellectual Property Law
In intellectual property law framework, conferring legal protection to websites as “work” pursuant to ILAW and/or as trademark and/or design pursuant to the Industrial Property Code numbered 6769 (“IP Code”) could be argued.
Protection as “Work” under ILAW
To accept a creation of mind as a “Work” under Article 1/b of the ILAW, (i) there must be an intellectual product outcome of a real person’s intellectual labor, (ii) it must be fixed in a tangible medium, (iii) it must bear the characteristics and originality of its author, and (iv) it must be classified under one of the categories defined in the ILAW. Websites easily satisfy the originality, fixation and intellectual labor criteria, which is confirmed in a decision of Istanbul 16th Commercial Court of First Instance dated 2018 concluding that “Taking into account the elements of websites such as graphs, texts, audio, image, music, design, and their recognition level collectively, websites carry the required qualifications for being a Work”. On the other hand, it is more complex to determine whether websites satisfy the criteria of “classification under one of the categories defined in the ILAW”, which also constitutes the main challenge of determining the scope of legal protection conferred to websites.
It is seen that academic studies and judicial decisions contain discussions and different views arguing that websites could be protected as “graphic works”, “computer programs”, “compilations”, or “databases”, which are the current work categories under the ILAW. On the contrary, there are some views arguing that websites, being multimedia works, should be conferred completely a different legal protection other than those already listed in the ILAW.
Protection as Graphic Works
“Graphic works” which have esthetic value are accepted as fine art works pursuant to Article 4 of the ILAW. Considering that a website is an integrated whole containing different elements like images, graphs, layouts and colors, it can be argued that websites could be deemed “graphic works” provided that their designs bear the characteristics of the author and have an esthetic value. Indeed, 11th Civil Chamber of the Court of Cassation (“CoC”) stated in a decision dated 2018 that “…the images, graphs, colors, layouts of the website where ads appear, briefly the overall look thereof, constitute a qualified whole and its design bears the characteristics of the author, which additionally gains the website in question the qualification of a “graphic work”.
Protection as Computer Program
Pursuant to Article 2 of the ILAW “computer programs bearing the characteristics of its author and the preparatory works, provided that the same leads to a computer program at the next stage” are listed among scientific and literary works. The relation between a computer program and a website is that the former is a compulsory tool to operate and display the latter. While some scholars have argued that websites could be protected as computer programs due to this close relation between computer programs and websites, the dominant view in the Turkish doctrine is that legal protection conferred to computer programs would not be sufficient for websites given that websites are indeed more comprehensive than the computer program operating behind and are formed pursuing not only functional purposes but also esthetic and visual purposes. The CoC, following the dominant view, upheld a decision of a First Instance Court which concluded that websites are not among those works that the ILAW intends to protect as computer programs. In this decision, the CoC determined that (i) WIPO defines computer programs as a set of instructions capable, when incorporated in a machine-readable medium, of causing a machine having information-processing capabilities to indicate, perform or achieve a particular function, task or result, and (ii) the plaintiff’s website could be defined neither as operating system and application program nor as micro-cod applying this definition.
Protection as Compilation
Under Article 1B/b of the ILAW, compilation means “Works such as encyclopedias and anthologies whose content consists of selection and arrangements, which are the results of intellectual creativity, provided that the rights on the original work are reserved.” Some academic views argue that the common feature between websites and compilations is that both contain more than one element. Websites are thought to resemble compilations particularly because websites, like compilations, could contain many different elements which may or may not be accepted as “Work”. It is argued that websites, due to their compact structure, should be protected as compilations, which means that originality of the work will be assessed in respect to selection and ordering of the constituent elements. Notwithstanding these discussions on whether legal protection conferred to compilations could be applicable to websites, it is seen that this issue has not been held in court decisions yet.
Protection as Database
Pursuant to Article 6/1-11 of the ILAW, “Databases obtained by the selection and compilation of data and materials according to a specific purpose and a specific plan, which are in a form that can be read by a device or in any other form” are conferred copyright protection. In academia, it has been widely argued that websites could be protected as databases due to the fact that databases are regulated as a specific type of compilations and saved electronically.
The CoC in a decision rendered in 2018 upheld a decision of a First Instance Court which concluded that websites are accepted as database. Similarly, the CoC in another decision rendered in 2015 upheld the decision of a First Instance Court which concluded that “while the plaintiff is the copyright holder on the database itself, this right cannot be extended to the elements of the database as the Law does not confer the protection to each and every piece of data and material forming the database, which makes it inappropriate to confer legal protection to the announcements published on the plaintiff’s website.”. In the decision rendered by Istanbul 2nd Civil Intellectual Property Court in 2021 containing important explanations regarding websites, it is stated that the dominant view under Turkish law is to protect websites as database dictating that “The creation subject matter of this case is the website design. A website is consisted of texts, graphs, images, videos, music records etc. Not all websites are accepted as work. Websites must satisfy the criteria set under the ILAW to be accepted as work meaning that it must bear the characteristics of its author and must be classified under one of the categories defined in the ILAW such as scientific and literary works, musical works, fine art works or cinematographic works. In addition to the elements like computer programs and database; music, images, graphics and other scientific and literary works are among elements that a website contains. It is possible to protect each of these elements as separate works. It is also possible to accept that all these elements together constitute one “web design work” and protect them collectively. It is generally accepted under Turkish law and comparative law that websites are in the form of “databases”.
We are of the opinion that it may be inferred from the analysis of the academic studies and judicial decisions mentioned above that while the question of under which exact class websites should be categorized is still controversial however websites are generally accepted as Work and enjoy the copyright protection as long as the conditions set under the ILAW are met.
Protection as Multimedia Work
Multimedia work does not correspond to a typical work under the ILAW contrary to the other types of works explicitly listed thereof, instead, multimedia works have e compact structure containing various types of work. Several definitions proposed to define multimedia works in academic studies indicate that multimedia works are digital and interactive works containing various elements like audio, image, animation, video, text together in different combinations. Some scholars consider websites as multimedia work arguing that websites bear the qualifications listed in the preceding sentence. Another discussion held regarding multimedia works pertains to whether it is needed to amend the ILAW adding a new type of work in order to protect the multimedia works within the scope thereof. As a part of this discussion, one view, defining multimedia works as a data storage and communication technique rather than a separate type of work, argues that multimedia works should be protected as adaptation under the ILAW. Some other views argue that multimedia works should be protected as databases under the ILAW. On the other hand, some scholars are in the view that the ILAW should be amended adding a new type of work arguing that the current rules set under the ILAW cannot be applicable to multimedia works given their diverse nature.
Protection as Design or Trademark
Although websites, as a whole, cannot be protected by design and trademark, constituent elements of the relevant website could be protected as design or trademark pursuant to the IP Code.
In addition, some views arguing that user interfaces could be protected by trademark law are asserted under American law. The underlying rationale of this view is that the general look and feeling of the website corresponds to trade dress, which can be protected within the scope of trademark law even if unregistered. However, this view is contested under Turkish law as such protection would neither be practical nor possible given that under Turkish law trademarks are subject to compulsory registration and each modification would trigger the need for a fresh filing. In our view, there is a value in emphasizing that the notion of “trade dress” is considered closer to design rather than trademark under Turkish law. If there are no other available industrial property rights protecting the relevant commercial presentation, it is directly protected within the scope of “unfair competition” rules.
Protection under Unfair Competition Law
In addition to options mentioned-above, websites, due to being a kind of “work product”, could also benefit from the “unfair competition” protection pursuant to the TCC.
The application scope and purpose of intellectual property and unfair competition rules are different from each other. While intellectual property rights protect the right holder who acquired the relevant right through its intellectual labor, provisions regarding unfair competition aim to protect fair and free competition environment. As stated in Article 54 of the TCC, “the provisions pertaining to unfair competition under this section aim to provide fair and undistorted competition in favor of all participants. Acts and commercial practices that impact the relations between competitors or between providers and customers or that breach the principle of good faith in other manners are unjust and unlawful.”
The underlying principle grounding the rules pertaining to unlawful competition is the exertion principle (“leistungsprinzip”), which is embodied under Article 55/1.a.4 of the TCC that reads as: “taking measures that lead to confusion with others’ goods, work products, activities or works, unauthorized exploitation of others’ work products; particularly passing off and exploiting others' ready-to-market work products by means of technical reproduction without appropriate contribution of one's own constitute unfair competition. ”
Infringement of this principle occurs if (i) exertion has been made to create the product alleged to be infringed, (ii) such exertion has resulted in a product that has material value, (iii) it is certain that someone else’s exertion has been exploited, and (iv) no independent effort of the infringer exists to create the subject matter of product.
As concluded in the CoC’s decision stating that “…Participating in another’s work, which is the product of that person’s hard work and personal effort, without putting the slightest effort and exertion, breaches moral rules and constitutes unfair competition. Defendant’s acts of commercializing the image of the plaintiff and gaining unfair advantage of plaintiff’s reputation which was built through effort and cost invested for long years constitute unfair competition.” unauthorized use of a commercial value created through effort and cost invested by others is not allowed.
As mentioned in the CoC’s decisions, unregistered products could be protected by “unfair competition” rules if following conditions are met: (i) the relevant product must have been created by the claiming party, (ii) existing similarities must not arise out of common technical structure, (iii) similarities must cause likelihood of confusion between two works. If all the criteria mentioned in the preceding sentence is met, the relevant intellectual works, namely websites in our Article, could be protected under unfair competition rules even if they are unregistered.
Also, pursuant to the cumulative protection principle that is widely accepted in the Turkish doctrine, intellectual property rules and unfair competition rules could be applicable simultaneously in a case. Therefore, pursuant to this principle, right holder may enjoy each kind of protection directly. However, it does not mean in any way that right holder is entitled to claim double compensation relying on both intellectual property and unfair competition grounds. Since compensation is not a tool for enrichment, only one of the compensation claims of the right holder will be honored. As determined in CoC’s decisions, in such cases claims will compete with each other rather than aggregate.
For example, in the case adjudicated before Istanbul Regional Courts of Appeal (“RCA”) recently filed claiming that the defendant’s website was created exploiting plaintiff’s website, which allegedly constituted unfair competition as well, the Court compared the disputed computer programs and concluded that defendant’s acts did not constitute unfair competition stating that “(i) operating methods, main algorithms and modules of programs are highly similar, but codes are not identical, (ii)the project was re-coded through a different coding logic, (iii) while the operating logic and interfaces and used expressions are identical, these are outcomes obtained through different programming techniques,(iv) services are provided to different target groups, (v)the sole fact that the defendant used a portion of data that he acquired during the period of time that he worked for the plaintiff company in his own program and advertisement flyers does not constitute unfair competition, (vi)the defendant has technical knowledge as required by his profession and it cannot be argued that he should not use this knowledge while working”.
However, the CoC reviewed the matter upon appeal of the RCA’s decision, compared the computer programs operating behind the websites, and overturned the RCA’s decisions concluding that defendant’s acts constituted unfair competition determining that “(i)name of application modules, operating logic and user interfaces of programs, expressions, formula, name of sub-modules used in some modules are identical, (ii) but programs were coded with different coding language and filing logic of programs are different, which overall makes software different but programs are still similar with respect to presentation of the work, and (iv) it constitutes “taking measures that lead to confusion with others’ goods, work products, activities or works”.
Therefore, on examination of cases filed based on right infringement claims, courts will take into account the particular circumstances of the present case and assess whether (i) the disputed use exceeds the allowed scope of inspiration and/or fair use, (ii) similarities arise out of technical and structural features or nature of the work, (iii) the work is created using publicly available methods and formulas.
Available Legal Remedies for Infringement
It should be noted that websites could be granted legal protection within the framework of the ILAW and the TCC and even design and trademark protection pursuant to the IP Code providing that the conditions set in the relevant law are satisfied. In such cases, right holders may seek remedies to which they are entitled pursuant to the relevant laws in the case of infringement.
Accordingly, copyright holder over a website is entitled to the following remedies as per the ILAW: (i) request for determination of infringement, (ii) file actions for cessation and prevention of infringement, (iii) claim compensation, (iv) file criminal complaints, and (v) other injunctions and legal remedies.
In addition, if the right holder encounters the risk of suffering from damages due to unfair competition, it can request (i) determination of unfair competition, (ii) prevention of unfair competition, (iii) restitution of financial situation that is the result of unfair competition, (iv) if unfair competition occurs through false or misleading statements, correction of such statements, (v) destructions of the tools and goods facilitating the unfair competition, (vi) if the counter party has fault, compensation for material damages, and (vii) compensation for moral damages if conditions set under Article 58 (“regulates the violation of personal rights”) of the Turkish Code of Obligations (“TCO”) are met. Right holder is entitled to seek criminal remedies listed under Article 62 of the TCC as well. Besides this, it is possible to request determination of evidence pursuant to Code of Civil Procedure (“CCP”) numbered 6100, seek preliminary injunctions and other temporary legal protections if relevant conditions are met.
It is controversial whether websites, which have become an unalienable part of our digitalized lives, should be conferred an additional legal protection separate from its constituent elements due to their sui generis structure. However, the current practice suggests that websites could be conferred copyright protection and unfair competition and right holders could seek remedies set under the ILAW, TCC, TCO, CCP and any other relevant regulations in the case of infringement. Courts take into account of the specific circumstances of each case and assess limit of the allowed use.
In conclusion, protection of websites under Turkish Law is not a straightforward topic that current regulations could easily respond. To the contrary, it is a complex subject which compels law practitioners to become aware of all possible legal remedies and possibilities of infringement. The most basic inference from the academic studies and judicial decisions analyzed above would be that the more original the websites are, the stronger the legal protection is.
In such an environment where the scope of the applicable law is ambiguous, we are of the opinion that those intending to protect their websites should (i) register original logos, icons and similar signs to be used associated with the website as trademarks, (ii) establish the relation with independent (freelance) contractors and agencies by comprehensive contracts where assignment and licensing of intellectual property rights are explicitly addressed and post-contract relation of the parties is clearly regulated, (iii) periodically monitor the market to become aware of any potential infringement and timely take necessary actions (such as sending cease and desist letters), (iv) ensure the security of document and data containing their intellectual property rights, (v) if working as teams, raise the corporate awareness that intellectual property and digital property are valuable assets which should be protected diligently.
On the other side, there is a value in underlying that when the applicable law is not certain, one can unexpected find itself in infringing activities. We are of the opinion that the risk of committing gross inadvertent infringement could be minimized by (i) using images, graphical elements and similar materials of its own while designing the website, (ii) if planning to use others’ intellectual property rights, making sure to remain within the scope of allowed fair use, (iii) being aware of the fine line between the allowed inspiration from others’ intellectual property rights and infringement thereof, (iv) conducting intellectual property right clearance through searching registered trademarks, trade names and copyrights of others before inserting these to any part of the website, (v) if working as teams, raising the corporate awareness that intellectual property right infringement may cause financial cost and reputation loss for the company that is the owner of the website.