Software is a type of work that is specially protected in the "science and literary work" category in accordance with article 2/1-1 of the Law on Intellectual and Artistic Works (FSEK) No. 5846. "Computer programs" and preparatory design material are also included in this scope.
Financial and Moral Rights on the Software
Moral Rights (FSEK art.13-19)
- The right to indicate the name of the author of the work
- The right to present the work to the public
- Right to respect for the integrity of the work
Financial Rights (FSEK art.20-25)
- Right to processing
- Right to reproduce
- Right to disseminate
- Right to representation
- Right of public transmission (online distribution)
License Types
1. Proprietary Software
Software developed by companies such as Microsoft, Adobe, Oracle, which gives the end user the right to use it under certain conditions. It is connected with EULA (End User License Agreement). Reproduction is generally prohibited.
2. Open Source Licenses
- GPL (GNU Public License): Derivative works must also be published under the same license (copyleft).
- MIT, BSD, Apache 2.0: More flexible; Free for commercial use, modification and closed source derivatives, attribution only required.
- AGPL: Requires derivative license sharing even in Cloud / SaaS usage.
License Incompatibility Problem
If you use a GPL licensed library in a project, your entire project must be GPL compliant. Otherwise, there will be a license violation and liability for compensation and non-use of the work will arise.
Reverse Engineering Prohibition (FSEK article 38)
Converting computer programs into source code (decompile, disassemble) is prohibited as a rule. Exceptions:
- For interoperability, mandatory parts are required to obtain information that cannot be obtained from other sources
- By the legal user, limited to the use of the program
Software Theft and Piracy
According to FSEK article 71:
- Person who reproduces, distributes, sells or rents the work 1-5 years imprisonment
- Administrative fines and activity bans on legal entities
- The right holder may request up to 3 times compensation (FSEK article 68)
Supreme Court HGK Jurisprudence
The General Assembly of the Supreme Court of Appeals accepts that EULA provisions are subject to validity control in software license disputes and that unfair conditions involving unilateral imposition may be deemed invalid within the framework of Articles 20-25 of the Turkish Code of Obligations and TKHK.
It is emphasized that in the compensation calculation based on FSEK Article 68, three times compensation is the "minimum" and can be increased depending on the intent and duration of the violation.
Caution in Contract Design
- License scope should be clearly defined (number of users, duration, geography, version)
- Delivery conditions of source code (escrow agreement)
- Maintenance and support (SLA)
- Data ownership
- Copyright transfer etc. license separation (FSEK art.48 - copyright transfer is subject to written form)
Jurisdictional and Competent Court
- Authorized by: Intellectual and Industrial Property Rights Civil Court (If there is no special court, Civil Court of First Instance)
- Authority: Defendant's place of residence / place where the act was committed
Software license agreements and disputes require technical and legal expertise; IT and intellectual property lawyer support is important.