HOW ARE SOURCE CODES PROTECTED UNDER TURKISH LAW?
Today, with the digital transformation, even business processes that are normally carried out in an analogue manner have been digitised; many businesses, from the most critical infrastructures to the simplest business processes, have become carried out through software. For this reason, while software has become one of the most important tools in the inventory of companies in terms of business continuity, competition in the software world and unfair competition or copyright violations have increased. This situation puts technology companies, which are the creators and owners of software, in a difficult situation in terms of protecting their software products. In this context, we present our study containing the research findings we have carried out for the information and benefit of those concerned.
What is Source Code?
Before a software is processed and translated into machine language, it is called source code (“Source Code”) in a readable and understandable form by humans. These codes come together to form the software and since they are not written in a programming language, they provide convenience for people dealing with programming to work on them and to understand the algorithm and working logic of the designed programme.
Programmes consist of a large number of source codes and these codes are compiled to create an application file. After the compilation phase, the source codes are not needed in the construction of the programme, the compiled application file is used. In this context, programme developers are not obliged to publish their source code openly. Nevertheless, open source software (“Open Source”) is software in which the developers provide the compiled application file and the source code together, thus enabling people to create their own versions by compiling the programme.
In the other type of closed source software (“Closed Source”), on the other hand, the developer of the programme remains loyal to the developer and it is not possible for people to make any changes or improvements on the programme. In this respect, closed source software hides the ways in which the developer has designed the programme.
The Importance of Protecting Source Codes
While software products are produced as a result of intensive labour and long work in the preparation stages, they are extremely cheap and easy to copy. While rapidly developing technology provides many opportunities for the IT sector, it also brings along risks that make it easier to copy and break software licences. When the labour and expenses incurred by the software creator are added to this, the importance and necessity of legal protection of the products produced becomes a fundamental necessity.
Protection of Software within the Scope of FSEK
Copyright means the protection provided by law in relation to the use and copying of information, ideas, works of art and products created by a person or persons with all kinds of intellectual labour. There is no need for registration in order for copyright to arise, and the rights on intellectual and artistic works arise with the creation of the work. Forms of expression, including the programme codes of software, are protected as works within the scope of the Law on Intellectual and Artistic Works (“FSEK”), provided that they meet the conditions of being a work. The conditions of being a work consist of being produced as a result of an intellectual effort, bearing the characteristics of the author, falling into one of the types of works listed in the law and being shaped.
Article 1/3 of Directive 2009/24/EC on the Legal Protection of Computer Programmes provides that “A computer programme shall be protected if it is original in the sense that it is the author’s own intellectual creation”. Authenticity does not require the product to be new, aesthetic or unique, but the creativity of the author on the product, a kind of signature.
What are the Limits of Protection of Software, Computer Programmes, Source Code and Object Code under the FSEK?
Software/computer programmes are protected within the scope of “works of science and literature” pursuant to Article 2 of FSEK. Since the programme flow is also defined as the expression of the idea underlying the software and shows the components of the programme and the order in which these components will work, it guides the programmer during the development of the programme and the writing of the codes. For this reason, the legal protection afforded to software and computer programs is also afforded to program flow, since its creation requires a much greater effort than the writing of code. In the case of source and object codes, since the idea for the development of the programme is transformed into an expression, it can be said that both are within the scope of protection.
Right Ownership in the Protection of Software
Pursuant to Article 8 of FSEK, since the person who created the work is considered the owner of that work, the real person(s) who created the software are also the owners of such software. Pursuant to Art. 10/3 FSEK, persons who provide ideas, advice and, in a sense, technical services or technical assistance during the creation of a software are not considered as authors. In order for a person to be a party to the author’s rights, his/her contribution during the production of the work must be directly related to the creation and production of the work. In this respect, since legal entities do not engage in any intellectual work and endeavour, they cannot be authors. Legal entities may own the financial rights on the work, but not the moral rights.
The ownership mentioned here is within the scope of single person ownership (individual ownership). In cases where more than one person owns a work, joint ownership is in question and this concept is divided into joint authorship (in the case of an inseparable work) and joint authorship (in the case of bringing together more than one work) in accordance with the Turkish Civil Code (“TCC”).
In the case of joint copyright on software, more than one software developer produces a new programme by combining programmes that can work separately from each other. In such a case, the software developers, as authors, can exercise their rights over their own part on their own, and at the same time, they gain the title of joint author over the new software created by combining them.
In cases where more than one person (usually employees) produce parts of the software and these parts do not make sense on their own, the employees will be joint authors of the software. In this case, it is generally not possible for the employees of a company to leave the company by taking the part of the programme they developed. In contributory copyright, the work constitutes an inseparable whole, and unanimity is required for all operations to be performed on it.
If there is no contrary provision in the contract, participation in the profit and loss obtained from a software developed shall be shared equally for each software developer, regardless of the nature of the part created.
Unless there is an agreement to the contrary or the nature of the work requires otherwise, if an employee, servant or civil servant working in an enterprise creates a work while performing his/her duties, the rights on these works shall be exercised by the employer legal entities. The same provision also applies to the organs of legal entities. In addition, pursuant to Article 18 of FSEK, the publisher or producer of the work, who is not the author of the work, may exercise the financial rights only according to the contract to be concluded with the author of the work. For example, if a software developer produces software while working for a company, the employer company will have the right to use the financial rights on the software according to this provision of the law. The software developer, on the other hand, will have moral rights as the author and may transfer the authorisation to use these rights on his behalf to a natural or legal person, although he cannot transfer these rights or waive these rights in advance in accordance with the law.
On the other hand, if the software developer works independently without being bound by a service contract, he becomes the author directly and has the right to use the financial and moral rights on the work. In this case, the author is obliged to transfer the financial rights to the software company when there is a contract between them. However, the transfer of rights here does not directly belong to the employer software company in terms of the financial rights owned directly by the author.
Source Code Theft
Source code theft (plagiarism) means the partial or complete copying or modification of source code files or a part of the source code without the consent of the code owner, who is the author, and using it to produce another software/programme.
Obtaining the source code itself or a representative copy of it by reverse engineering or any other method and producing a new software/programme by making use of the code also falls within the scope of plagiarism. The use of the stolen code by translating it into a different programming language will not constitute an obstacle to the existence of plagiarism. Source code plagiarism, which most frequently occurs in practice with the “clone coding” method, will mean the violation of the financial and moral rights of the author, which are protected by the legal order and regulated within the scope of FSEK, and legal and criminal responsibilities will arise for those who commit plagiarism. In this sense, the use of clone codes obtained by copying a source code completely or partially in the production of another software/programme causes plagiarism.
What Can Source Code Owners Do Against Code Theft?
The law protects the rights of the author against any act of plagiarism that may be committed in terms of all kinds of works (music, literature, painting, etc.) that fall within the scope of intellectual and artistic works. Therefore, it is possible for the authors, who are the victims of plagiarism, to file all kinds of criminal, compensation, determination and performance lawsuits; it is possible to request from the court for discovery and confiscation of machinery, materials and equipment used in the act of plagiarism in order to determine the existence of plagiarism by an expert.
Determination of Authorship Lawsuit
If there is a dispute as to who is the original owner of the source code and there is more than one person claiming ownership of the source code, the party claiming to be the author may request the court to determine that the code belongs to him.
Action for Refusal of Infringement
The refusal of infringement means the removal of the infringement. In order for the source code owner to bring this action, the plagiarism must continue. For example; the continued use of the software/programme produced by using the plagiarised codes by private real or legal persons, or the continued supply to the public, or the publication of these codes in printed works (books, magazines, etc.) without the consent of the owner will mean this. The action for refusal of infringement aims to eliminate the existing and ongoing infringement and its consequences. If the court accepts the case, it will take all kinds of measures to remove the infringement.
The fault of the perpetrators of the act of plagiarism is not required for the acceptance of the action for refusal of infringement. In other words, even if there is no fault on the part of the persons who committed the plagiarism, the mere existence of plagiarism will be sufficient to decide to remove the infringement with all its consequences. If the code owner has suffered material or immaterial damage as a result of the infringement in question, the right to request the court to compensate for this damage is also reserved. However, in this case, the amount of compensation will be proportional to the fault of the plagiariser. The law gives the author (code owner) the right to claim compensation from the plagiariser up to 3 times the monetary equivalent of the use of the codes in question in the event that they are subject to a contract.
Action for the Prohibition of Infringement
Prevention of infringement means the prevention of infringement. The owner of the source code may bring an action for the prohibition of infringement in order to eliminate the danger of infringement (including the danger of repetition of the infringement that has already occurred). While the aim of the action for refusal of infringement is to eliminate the act of infringement already committed and its consequences, the aim of the action for prohibition of infringement is to eliminate the danger of infringement.
Compensation Cases
Source code owners whose financial or moral rights arising from FSEK are violated by the act of plagiarism may sue for pecuniary or non-pecuniary damages. In the event of an action for moral damages, the fault of the plagiariser is not required for the award of moral damages. If the author’s financial rights have been damaged by the act of plagiarism, it is also possible to file a lawsuit for pecuniary damages. Unlike moral damages, the amount of pecuniary damages will be proportional to the fault of the plagiariser.
Criminal Cases
The legislator has stipulated that a person who plagiarises someone else’s source code and presents it as his/her own may be sentenced to imprisonment from 2 to 4 years. If plagiarism also meets the other conditions, it may also give rise to the offence of “unlawful transfer or acquisition of data” regulated under Article 136 of the Turkish Penal Code (“TPC”).
Other Rights
Source code owners who are victims of plagiarism may file the above-mentioned lawsuits, but may also seek an injunction against the plagiarists, request the announcement of the court’s judgment, and request the destruction of the machinery, equipment, etc. used in the act of plagiarism.
GRC LEGAL Comment
The increase in digitalised business processes and software with the developing technology has made software security and protection issues more critical. Especially the rapid proliferation of software products increases the risks encountered in terms of copyright and intellectual property protection. The theft or unauthorised use of source codes threatens the financial and moral rights of software owners, which necessitates legal protection and measures.
In this context, technology companies and software developers should develop effective strategies for the protection of source codes and strengthen legal protection mechanisms. The effective use of advanced security measures, licence management systems and legal tools to combat copyright infringement will minimise the risks faced by software owners. Furthermore, in parallel with technological advances, increasing legal regulations and awareness on the protection of software and source codes will contribute to ensuring a secure digital environment for all stakeholders in the sector.
