In the first article of our series “Software and IP: 1- Protection with Different Intellectual Property Rights”, we explained that when computer programs are concerned, copyrights should spring to mind first. In this article, we will examine which computer programs and other related elements of computer programs are entitled to copyright protection.
Accepted as a “Work”
In Türkiye, copyrights are regulated under the Intellectual and Artistic Works Code numbered 5846 (“Copyright Code”), which was enacted in 1951 and came into force in 1952.
The first condition for a “work” to be protected by copyright within the Copyright Code is that it has the characteristics of the person who created it. What should be understood from the concept of characteristic is the originality of the work. [1]
Another condition for an intellectual work to be protected by copyright is that it has to be covered in the exhaustive list of works in the Copyright Code. In the Copyright Code, the types of works are divided into “science and literary works”, “musical works”, “works of fine arts” and “cinematographic works”. Computer programs are included in the first category, “scientific and literary works”. Nonetheless, the definitions made in the Copyright Code should be examined to determine which element of the computer programs and related works can benefit from copyright protection.
Computer Programs and Preparatory Works in the Copyright Code
In the Copyright Code article 1/B (g), computer programs are 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.”. [2] In this definition, “preparatory work” is also included in the definition of the computer program.
However, the Copyright Code article 2/1, while listing scientific and literary works, indicates “Works that are expressed by language and writing in any form, and computer programs expressed in any form together with their preparatory designs, provided that the same leads to a computer program at the next stage.” [3] and so makes a distinction between computer programs and preparatory work.
The source codes and object codes that construct the computer program are protected by copyright. Source code is the instructions written by the programmer in the software language, but the object code is its conversion to machine language. [4]
The Copyright Code does not define the extent of copyright protection from which preparatory work will benefit. Therefore, it should be accepted that all kinds of design and coding preparations, especially flow charts, can be included in the scope of computer program preparation. Article 2/1 of the Copyright Code states that the preparatory works of computer programs will benefit from protection, provided that they become a program in the next stage. However, the view in the doctrine is that the preparatory work should be protected by copyright, even if the respective preparatory work does not result in a computer program in the next stage, but can result in a computer program at any stage. [5]
Algorithm, Interface, Databases in Copyright Code
An algorithm can be defined as the steps to be taken to solve a specific problem. [6] Therefore, at first glance, it can be thought that the algorithm should be protected by copyright as a preparatory work of the computer program. However, Article 2/2 of the Copyright Code states that the ideas and principles underlying any element of a computer program, including the ideas and principles underlying its interface, shall not be considered as a work. As per this provision, algorithms fall outside the scope of Copyright Code protection. Furthermore, Industrial Property Code numbered 6769 (“IP Code”), which regulates other types of intellectual property rights, does not provide legal protection to algorithms. Therefore, it can be said that algorithms can only be treated as trade secrets and can be legally protected within the framework of contractual relationships or unfair competition provisions.
Interfaces that provide interaction between the user and the computer, consisting of elements such as menus and options on the screen, are also excluded from the scope of copyright protection as per the Copyright Code article 2/2. However, the part excluded from the scope of copyright protection here is the technical function of the interfaces. [7] The graphical and auditory features of the interfaces can be considered within the scope of one of the other types of work within the Copyright Code and accordingly may be eligible for copyright protection. Besides, if the interfaces meet the requirements of novelty and distinctiveness, they may be considered as a design within the scope of the IP Code.
The Copyright Code specifically regulates databases. According to article 6/1 subparagraph 11 of the Copyright Code, databases are considered adaptation works if they are obtained by the selection and compilation of data and materials according to a specific purpose and plan, which are in a format that can be read by a device or in any other format. The same subparagraph also states that the data and the materials in the database are excluded from the scope of protection. Depending on the characteristics of the data in the database, it may be protected as a trade secret or personal data. Furthermore, according to article 8 of the Copyright Code, special protection is provided to the database creator who helps with the content of the database. We plan to examine the databases separately in one of the forthcoming articles of our series.
Other Articles of the Software and IP Series:
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[1] 11th Civil Chamber of the Court of Cassation, 11 May 2000, Basis No. 3250, Decision No. 4072
[2] https://www.wipo.int/wipolex/en/text/440051 last accessed on 9 August 2023.
[3] Ibid.
[4] Pelin Özkaya, Refik Samet, Yazılım Ürünlerinin Telif Hukuku Kapsamında Korunması, Uluslararası Bilgi Güvenliği Mühendisliği Dergisi, Vol:6, No:1, p:21 (https://dergipark.org.tr/en/download/article-file/1194041 last accessed on 9 August 2023.
[5] Cahit Suluk, Rauf Karasu, Temel Nal, Fikri Mülkiyet Hukuku, Seçkin Yayıncılık, Baskı, Ankara 2020, p. 149
[6] Şener Dalyan, Bilgisayar Programlarının Fikri Hukukta Korunması, T.C. Ankara Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk (Medeni Hukuk) Anabilim Dalı, Doktora Tezi, Ankara, 2008, p.15 (https://dspace.ankara.edu.tr/xmlui/bitstream/handle/20.500.12575/37468/228066.pdf?sequence=1 last accessed on 9 August 2023)
[7] Tuğba Akdemir Kamalı, Fikri Hukuk Kapsamında Bilgisayar Programlarındaki Değişikliklerin Sonuçları, Seçkin Yayıncılık, Baskı, Ankara 2019, p. 113