Legal Protection of Computer Programs and License Violations

 How is the legal protection of computer programs ensured? This comprehensive guide addresses the legal aspects of software under the Turkish Copyright Law (FSEK), including copyright infringements, compensation, triple damages, criminal liability, and legal risks for companies.

In our era where digitalization is reshaping economic life, computer programs are no longer just technical tools, but a fundamental element of commercial activity. A large portion of fields such as accounting, architecture, engineering, design, logistics, production planning, data analysis, human resources, and customer relations are conducted through software. Therefore, the legal protection of computer programs has ceased to be a narrow issue concerning only software developers; it has become an intellectual property and compliance issue directly affecting companies, startups, freelancers, public institutions, and end-users. In Turkish law, the fundamental basis for this protection is the Law No. 5846 on Intellectual and Artistic Works. According to the current consolidated text in WIPO Lex, the Law is in force, including the amendments made by Law No. 7346 dated December 21, 2021.

The most common problem in computer software is license infringement. In practice, license infringement often brings to mind only "pirated software." However, from a legal perspective, infringement extends to a much broader area. Using a single-user license on multiple devices, making a trial version permanent for commercial use, keeping a program active after its subscription period has expired, distributing license keys to group companies, unauthorized server setup, or disabling protection mechanisms can all give rise to license infringement discussions. Under Turkish law, what is decisive is not whether the software is actually running, but whether it is being used within the scope of the usage permitted by the rights holder.

How is a computer program protected under the Turkish Copyright Law?

The Law on Intellectual and Artistic Works (FSEK) explicitly defines a computer program. According to Article 1/B of the law, a computer program refers to a sequence of computer commands arranged to enable a computer system to perform a specific operation or task, and the preparatory work that facilitates the formation and development of this sequence. Article 2 of the same law considers computer programs in all forms, and their preparatory designs provided they result in a program outcome, as "works of science and literature." Conversely, the ideas and principles underlying any element of a computer program, including the underlying interface, are not considered works. This distinction is extremely important; the law protects not the abstract idea, but the concrete and defensible form of that idea's expression.

This protection can cover not only commercially available software packages, but also specially developed software that meets the requirements of originality, specific preparatory designs, and the functional integrity of the software. Therefore, approaches such as "code was written but not registered" or "the program was not offered for commercial sale" do not mean that protection never arose. The protection logic of the Copyright Law comes into play from the moment the software qualifies as a work.

Is registration required, or does the right arise automatically?

In Turkish law, copyright generally arises not upon registration, but upon the creation of the work. According to the General Directorate of Copyrights of the Ministry of Culture and Tourism, since copyright already belongs to the creator of the work, there is no mandatory procedure required to "acquire" the right. The optional registration system functions more as a mechanism to facilitate proof than as a condition for creating the right. Therefore, a software developer's right arises the moment they create the program; registration is not what establishes its existence, but rather a helpful tool that can increase its evidentiary value in future disputes.

This point is crucial in licensing infringement cases. Some users or companies mistakenly assume that "if the software isn't registered, there's no protection." However, when the Ministry's statements and the system of the Copyright Law are considered together, the determining factor for protection is not registration, but whether the software qualifies as a work of art. The absence of registration does not automatically eliminate all claims of the rights holder; it can only lead to different interpretations regarding proof.

Why are financial rights related to software important?

According to Article 18 of the Turkish Copyright Law (FSEK), the right to use financial rights belongs exclusively to the author. The same provision also stipulates that, unless otherwise agreed in a specific contract or by the nature of the work, the financial rights to works created by employees, servants, and workers in the course of their duties shall be used by those employing or appointing them. Therefore, while a separate assessment may be made regarding internal relations in software developed within a company, the fundamental principle remains the same for the use of software belonging to a third party in the workplace: the authorization must come from the rights holder or the authorized licensor.

Article 20 of the law emphasizes that financial rights are independent of each other. In other words, obtaining the right to use software within a specific scope does not automatically grant unlimited rights to reproduce, distribute, transmit, or use it in different media. This is why software license agreements are so important. An invoice held by a user or company does not always mean that the current usage model is legal; the scope of the license must be examined separately.

What exactly does license breach mean?

License infringement, simply put, is the use of a computer program beyond the limits permitted by the copyright holder. Open piracy, i.e., installation with cracked or counterfeit keys, is of course the most visible example. However, more common in practice are infringements that begin seemingly "legal" but exceed the scope of the license. For example, opening a single-user license to multiple employees on an internal company network, using an educational version for commercial project production, detaching an OEM license from its original device and running it on different hardware, or keeping an expired subscription within the company's operations are all examples of this.

Article 22 of the Copyright Law is critically important in this regard. According to the provision, the right to reproduce the original or copies of a work, in whole or in part, directly or indirectly, temporarily or permanently, belongs exclusively to the author. More importantly, the same article explicitly states that, with regard to computer programs, the right of reproduction also includes the acts of installing, viewing, running, transmitting, and storing the program. Therefore, defenses such as "we only installed it, we didn't copy it" or "we didn't actively sell it, we only used it" do not yield the expected result in most cases. Many processes accompanying the technical use of software can already fall within the scope of reproduction under copyright law.

According to Article 23 of the Copyright Law, the right to rent, lend, sell, or otherwise distribute the original or reproduced copies of a work belongs exclusively to the author. Article 25 protects the right of public transmission through means of transmitting signals, sounds, and/or images, including digital transmission. Therefore, there can be significant legal differences between a software program being installed on a single device and being distributed across a company network to branches, servers, or remote teams.

What are the limits of lawful use?

The Turkish Copyright Law (FSEK) also grants certain limited freedoms regarding legally acquired software. According to Article 38 of the law, unless otherwise stipulated in the contract and to the extent necessary for the intended use, the reproduction and processing of a computer program by the person who legally acquired it is permitted. The same article stipulates that the installation, execution, and correction of errors in a legally acquired program cannot be prevented by contract; and that even a single backup copy, as long as it is necessary for use, cannot be prohibited. Furthermore, observing, examining, and testing the program's operation to determine its underlying principles and ideas is also permitted within certain limits.

However, the limits of these freedoms are very clear: they only legally obtained programs. In other words, Article 38 does not provide a protective shield for software that has been installed without a license from the outset, has exceeded the number of users, has had its protection broken, or has been illegally copied. The most common mistake in practice is assuming that the technical freedoms granted to licensed users also apply to pirated use. However, the law protects the legitimate user, not the unauthorized user.

What are the legal consequences of licensing violations?

The first major area for addressing licensing violations related to computer programs is legal action. According to Article 66 of the Turkish Copyright Law, a person whose moral and financial rights have been violated can sue the infringer for the cessation of the violation. The same article states that if the violation was committed by the company's representatives or employees while performing their services, a lawsuit can also be filed against the company owner, and fault is not a prerequisite for such a lawsuit. This provision, particularly in companies, prevents the view that software violations are limited solely to the employee who installed the software.

Article 69 regulates the action to prevent infringement. An author whose financial or moral rights are threatened with infringement may sue to prevent the potential infringement; the same avenue is available if the continuation or recurrence of the existing infringement is likely. This provision means that the rights holder can apply to the court not only to stop past infringement but also to stop future unlicensed use.

On the compensation front, Article 70 of the Copyright Law is important. A person whose moral rights have been violated may claim moral damages; a person whose financial rights have been violated may claim material damages according to the provisions of tort law if the infringer is at fault. The same article stipulates that, in addition to compensation, the injured party may also request that the profits obtained by the infringer be given to them. This shows that software license infringement can give rise to broader economic liability, not limited solely to the unpaid license fee.

Furthermore, Article 68 of the Turkish Copyright Law grants the rights holder a very strong claim right. According to this provision, rights holders who have not obtained permission can demand up to three times the price they would have requested if a contract had been made, or the market value. This mechanism, known in practice as "three times the price," clearly demonstrates why license violations cannot be easily remedied by subsequently obtaining a license. This risk can be extremely significant, especially in commercially valuable engineering, CAD, ERP, database, design, or accounting software.

When does criminal liability arise?

Article 71 of the Turkish Copyright Law (FSEK) criminalizes acts of infringement of moral, financial, or related rights. According to this provision, anyone who, without the written permission of the rights holder, processes, represents, reproduces, modifies, distributes, transmits to the public by any means of signal, sound, or image transmission, publishes, or offers for sale, sells, purchases for commercial purposes, imports or exports, possesses, or stores works that have been illegally processed or reproduced, except for personal use, shall be sentenced to imprisonment for one to five years or a judicial fine. In the context of software, this provision creates a significant risk area, especially for commercial enterprises.

In addition, Article 72, following the 2021 amendment, also targets products and tools designed to circumvent technological safeguards. The provision stipulates that those who manufacture, import, distribute, sell, lease, or commercially possess products and tools designed to bypass effective technological safeguards such as access control, encryption, or duplication control, as well as those who provide advertising, marketing, design, or implementation services for such products and tools, shall be punished with imprisonment from six months to two years. This indicates that cracks, keygens, and similar hacking tools constitute a separate legal risk area.

Another important aspect of criminal investigation is Article 75. According to this article, investigation and prosecution for the offenses listed in Articles 71 and 72 are subject to complaint. For a complaint to be considered valid, the rights holders or their respective professional associations must provide the public prosecutor's office with documents and evidence proving their rights; otherwise, a decision of no grounds for prosecution may be issued. The same article also stipulates that, upon complaint, the public prosecutor will take the necessary steps regarding seizure and protective measures in accordance with the provisions of the Code of Criminal Procedure, and in some cases may issue a stay order limited to the reproduction activity.

Why are evidence, proof, and digital analysis important?

The most distinctive aspect of software disputes is that the majority of the evidence resides within digital systems. According to Article 76 of the Law on Intellectual and Artistic Works (FSEK), in legal cases under this law, if the plaintiff provides sufficient evidence to establish a strong conviction of the truth of their claim, the court may request the submission of documents demonstrating that the necessary permissions and authorizations stipulated in the law were obtained for the works used, or a list of the works utilized; failure to submit these documents or lists creates a presumption of unlawful use. This provision is extremely critical for companies, as scattered license records, incomplete invoices, and weak inventory management can directly translate into weaknesses in their defense.

In the context of criminal investigations, Article 134 of the Code of Criminal Procedure (CMK) comes into play. According to the official text of the CMK, if there are strong grounds for suspicion based on concrete evidence and there is no other way to obtain evidence, a judge, or in cases where delay would be detrimental, the public prosecutor, may order a search of computers and computer programs, the copying of records, and their decryption and transcription. Seizure is possible if the password cannot be decrypted, confidential information cannot be accessed, or the process would take a long time; the backup of the data and the provision of a copy to the suspect or their lawyer are also separately guaranteed by the law. This shows that license infringement cases are pursued not only on abstract allegations but also with technical examination and digital evidence.

What should companies and developers do?

The most appropriate approach to the legal protection of computer programs is not to develop a defense after a dispute arises, but to establish a sound licensing and evidence system from the outset. For software developers, source code, version history, developer agreements, and records of rights transfer or usage authorization in employer-employee relationships are crucial. For companies using software, device-based installation inventories, license agreements, subscription records, invoice archives, and user-based authorization management become critical. This is because both the evidentiary regime in Article 76 of the Turkish Copyright Law and any potential criminal investigation can be shaped by these documents.

Furthermore, the inability to reach the copyright holder does not automatically grant a right of unlicensed use. According to the Ministry of Culture and Tourism's explicit statement, permission must be obtained from the copyright holder, or their heirs if the copyright holder is deceased, for the use of adaptation, reproduction, distribution, public transmission, and other financial rights; the Ministry is not the authority to grant permission for use. Therefore, the defense of "we could not find the copyright holder" does not provide a safe haven for unlicensed use.

Regarding the duration of protection, the general rule is that it lasts for the lifetime of the author and for 70 years after their death; if the author is a legal entity, it applies for 70 years from the date of publication. Therefore, protection is still in effect for a significant portion of software, and justifying unlicensed use by claiming "it's already an old program" is often not possible.

Conclusion

The legal protection of computer programs has a clear and strong foundation in Turkish law. The Copyright Law defines software as a work; protection arises from the creation of the work, independent of registration; and financial rights such as reproduction, distribution, and public transmission are left to the author. Moreover, since even technical operations such as installation, operation, and storage of computer programs often fall within the scope of the right of reproduction, license violations extend to a much wider area than the classic "selling of pirated copies.".

Therefore, license violations should not be viewed solely as contractual disputes. Actions to prevent and stop the violation, claims for material and moral damages, profit transfer, triple compensation, the crime of circumventing technological measures, criminal investigations based on complaints, and digital evidence examination can all be combined in the same case. For companies in particular, software license management is no longer an IT preference, but a direct matter of legal compliance. Unlicensed use, which may seem to offer short-term cost advantages, can lead to much more severe financial and criminal consequences in the long run.

Frequently Asked Questions

Does a computer program lack protection if it's not registered?
No. In Turkish law, copyright generally arises upon the creation of the work; registration is not a mandatory right-establishing condition.

Could allowing several people in the office to use a single-user license also be considered a violation?
Yes, if the license does not permit it, such use could pose a risk of copyright and license infringement. This is because the installation, execution, and storage of the program can also be considered under the scope of reproduction rights.

Does purchasing a license later erase a past violation?
As a rule, no. The risk of a triple penalty, compensation, or fine complaint relating to the past period may still remain.

If the rights holder cannot be found, can the software be used freely?
No. According to the Ministry's statement, permission must be obtained from the rights holder or their heirs for the use of financial rights; the Ministry will not grant this permission.

If a company employee created the product, can the company still be held liable?
Yes. According to Article 66 of the Turkish Copyright Law, if the violation was committed by an employee or representative during the performance of the service, a lawsuit can also be filed against the business owner.