Software and IP: 1- Protection with Different Intellectual Property Rights
Contents
The importance and value of the software industry may be at its peak due to the accelerating effect of digitalization. Nowadays, software companies that are a few years old can reach higher valuations than companies which we may describe as traditional, i.e., those that have been established for decades, have factories, and hundreds, maybe thousands of employees.
Since software is an intellectual product, it is clear that it will be protected mainly by intellectual property rights that grant the owner monopoly. However, discussions about how exactly this protection will be provided are still ongoing today. The fact that the subject is controversial, as well as confusing, can increase legal mistakes made in practice. To overcome this confusion to some extent, we decided to start a series of articles in which we can briefly and simply convey basic information under Turkish law that we consider important on this subject.
In this first article, we will briefly touch on which types of intellectual property rights can protect software in Turkey. But first, we would like to elucidate on a conceptual expression. The term “software” is not used at all in the Intellectual and Artistic Works Code numbered 5846 (“Copyright Code”) and the Industrial Property Code numbered 6769 (“IP Code”), which are the main relevant legislations in Turkish Law. Instead of the term “software”, the term “computer program” is used, which has indeed a narrower meaning, but is used interchangeably with “software” from time to time. In the Copyright Code, a computer program is defined as a “set of computer instructions arranged in a way that will make a computer system carry out a special process or task and the preparatory work that will lead to the creation and development of such set of instructions”. Software that is not defined in our legislation, can be defined as “everything that is not hardware”[1] or “all of the procedures, programming languages, documentation and programs that run the hardware”.[2] Therefore, the term software may include elements other than computer programs, such as user manuals, but such elements may not benefit from the legal protection afforded to the computer. Despite this distinction, we will also use the terms software and computer program interchangeably in many places in our article series. On the other hand, we will try to mention the issues that make a difference in terms of legal protection since they are outside the concept of the computer program.
Subsequent to these general descriptions, we can move on to the essence of the subject. Since the principle of cumulative (multiple) protection for intellectual property rights is accepted in Turkish law, intellectual products constituting software can be protected by different types of intellectual property rights if they meet certain conditions.[3] These intellectual property rights, which we have listed below, occasionally intersect and complement each other.
Copyright
“Which intellectual property right will software be protected by?” The primary answer to this question will be copyright. Article 2 of the Copyright Code considers computer programs among the works of “science and literature” which are protected by copyrights. For a computer program to be protected by copyright, it is sufficient for it to bear the characteristic of its creator. As per the general rule, registration is not a must for copyright protection. Copyright protection will start automatically with the creation of the product, namely the computer program. The source code is the main element protected by copyright in a computer program. The source code cannot be copied and related computer programs using the respective code cannot be used without permission thanks to copyright protection. Furthermore, other works related to a computer program, for instance, graphical designs and storylines in a game, may also be subject to copyright provided that the conditions of copyright protection are met. In the following articles of our series, we will be focusing mainly on copyright protection.
Patent
Patent rights protect inventions. According to Article 82, paragraph 2 of the IP Code, computer programs are explicitly listed among the subjects that cannot be considered as inventions and therefore, cannot be patented. However, according to the European Patent Convention, to which Turkey is a party, computer programs demonstrating “technical character” are excluded from this rule. In the case that the technical character condition and patent protection conditions such as novelty, invention step and utility are fulfilled, patent protection can also be granted to “computer-implemented inventions”. Registration is required for patent protection. We are planning to examine this controversial subject in detail in our subsequent articles.
Design
Designs protect appearance. Novel and distinctive appearances are eligible to be protected by design under the IP Code. Both two-dimensional and three-dimensional designs can be protected. As per the IP Code Article 55, it is not possible to protect the computer program itself as a design, as it is not considered a product. However, it is possible to protect images associated with computer programs as a design, such as graphical user interfaces, screenshots, desktop icons, and game characters. As per the general rule, design protection is provided by registration.
Trademark
A trademark can be defined as any sign, including words and shapes, which helps businesses to distinguish their goods and services from each other. Software companies often offer software and computer programs to the market through trademarks consisting of names and signs such as the names of the Word, Excel and PowerPoint programs of the Microsoft Office software and their logos. Trademark names can consist of the trade name of the company or they can be uniquely created names and signs. Trademarks have promotional and advertising features, and display quality functions. Therefore, trademark protection plays a crucial role in the success of a software company and its products. Sometimes the trust and influence provided by the trademark may precede the product itself in the consumer's purchasing preferences. As per the general rule, trademark protection is provided by registration.
Trade Secret and Unfair Competition
Trade secrets protected by unfair competition provisions are also included in the scope of intellectual property. Unfair competition is defined as “deceptive or other breaches of good faith and commercial practices that affect relationships between competitors or between suppliers and customers” in Article 54 of the Turkish Commercial Code numbered 6102 (“TCC”). Article 55 of the TCC lists some behaviors that constitute unfair competition. In line with paragraphs 1(c) and 1(d) in the same article, it can be inferred that unauthorized use and disclosure of trade secrets of others will constitute unfair competition. Anything that is not publicly available and that the owner is willing to keep confidential can be considered a trade secret. When it comes to software, many elements such as codes, data, processes, notes can be considered as trade secrets. Therefore, it can be said that trade secrets related to software can also be protected according to the unfair competition provisions of the TCC.
The greatest asset of a software company is undoubtedly its software. However, particularly on the subject of software, this value can only be achieved by protecting the software with intellectual property rights fully and accurately. However, as we tried to briefly demonstrate above, the issue on how software will be legally protected needs to be addressed from different perspectives. Different types of intellectual property rights may protect different elements of software. For this reason, software companies should approach the subject from a broader perspective and proceed by planning in detail.
In the case of trademarks, patents or designs, it should be ensured that the registration procedures in Turkey and other countries are carried out properly. Regarding trade secrets, necessary precautions should be taken to keep them secret. In the contractual relations of a software company with third parties and even its own employees and managers, the issue of copyright should be regulated very clearly.
[1] Mustafa Aksu, Bilgisayar Programlarının Fikri Mülkiyet Hukukunda Korunması, İstanbul, 2006, p.43 (as cited in Tuğba Akdemir Kamalı, Fikri Hukuk Kapsamında Bilgisayar Programlarındaki Değişikliklerin Sonuçları, Ankara, 2019, p.84).
[2] Şafak N. Erel, Fikrî Hukukta Bilgisayar Programlarının Korunması, AÜSBFD, 1994, p. 142. (as cited in Pelin Özkaya, Refik Samet, Yazılım Ürünlerinin Telif Hukuku Kapsamında Korunması, Uluslararası Bilgi Güvenliği Mühendisliği Dergisi, p:20)
[3] Cahit Suluk, Rauf Karasu, Temel Nal, Fikri Mülkiyet Hukuku, Ankara, 2017, p.21.
Successful