The rapid advancement of technology and the introduction of new technological products have had a direct impact on the software industry and related sectors. As computers have become an indispensable part of daily life, the protection of intellectual property rights for software and computer programs has also become a necessity.
Under the Intellectual and Artistic Works Law No. 5846 (“Law”), computer programs are protected under copyright law. National and international regulations, as well as doctrinal opinions, recognize that computer programs and software are legally overlapping concepts. Therefore, software that reflects the personal attributes of its creator is also protected under Turkish law, just like computer programs. Indeed, in 2020, the 11th Civil Chamber of the Court of Cassation ruled[1] that computer software is considered a literary and scientific work and awarded copyright damages.
Source code is a set of instructions written by a programmer in a computer language, which can be worked on before it is translated into machine language. Software is divided into two categories based on its source code: “Closed Source” and “Open Source.” Closed source software is licensed software that is commercially sold by the owner, with access to and modification of the source code being restricted. Such software cannot be altered without the owner's permission and can only be used under specified conditions. Therefore, the copyright protection of such software is considered to rest on a more solid foundation.
Open-source software, on the other hand, is software whose source code is shared with users. Although users are allowed to work freely on, modify,
and distribute modified versions of this software, it is still considered a work under the Law and is protected accordingly. While these might seem to be publicly available and communal resources, the Law provides the owners with the ability to transfer their financial rights or grant third parties usage rights. This is also the case with open-source software licenses, where the software owners regulate users' rights to use, modify, and distribute the software. Although the owner grants users’ certain rights over the software, the licenses ensure the owner's copyright is protected. For this, it is necessary to prepare clear and comprehensive licensing agreements and enter into these agreements with each user.
In practice, although users are generally aware that they have the right to use open-source software, primarily because it is free, they may not be fully aware that these programs must be used according to the rules set by the owner of the source code. Otherwise, they may unknowingly commit copyright infringement. This situation often leads to substantial compensation being awarded in favour of the owner, especially in cases involving applications/software used within companies. The fact that the value of the work is determined by the owner can also put the infringing party at a disadvantage, as in the event of a lawsuit, the compensation is calculated based on the value set by the owner, not on standard market rates. Therefore, it is crucial for users to comply with these usage conditions.
[1] 11th Civil Chamber of the Court of Cassation, Case No. 2019/4003, Decision No. 2020/2220, Date: 02.03.2020