Unlicensed Software and Copyright Infringement under the Law on Intellectual and Artistic Works (FSEK)

What does using unlicensed software mean under the Turkish Copyright Law? This comprehensive guide covers copyright infringement, compensation, triple damages claims, criminal liability, evidence gathering processes, and legal risks for companies under Turkish law.

In today's world, where digitalization has completely transformed business life, software is no longer just a technical tool; it is the backbone of production, accounting, design, human resources, communication, and data management. Therefore, the use of unlicensed software cannot be seen as merely a technical deficiency concerning only the IT department. In Turkish law, computer programs are among the works protected under the Law No. 5846 on Intellectual and Artistic Works. The purpose of the law is to define and protect the moral and financial rights of authors and to specify the sanctions to be applied in case of unauthorized use. According to WIPO's current consolidated records, the Law on Intellectual and Artistic Works is in force, including the amendments made up to Law No. 7346 dated December 21, 2021.

Therefore, when we talk about "unlicensed software," we're not only referring to pirated CDs, crack files, or pirated programs downloaded from the internet. In practice, installing a single-user license on multiple computers within a company, using a trial version in commercial projects, keeping a program active after the subscription period has expired, distributing license keys to different branches or group companies, or disabling protection systems all give rise to the same debate. From the perspective of the Copyright Law, what is decisive is not whether the software is actually running, but whether it is being used within the limits of the permission granted by the rights holder.

Why is software protected under the Turkish Copyright Law?

According to the definitions section of the Law on Intellectual and Artistic Works (FSEK), a computer program is defined as a sequence of commands arranged to enable a computer system to perform a specific operation or task, along with the preparatory work that facilitates its formation and development. Article 2 of the same law states that computer programs, in all their forms, and their preparatory designs, provided they produce a program result in the next stage, are considered works of science and literature. Furthermore, the law explicitly states that the ideas and principles forming the basis of any element of a computer program are not considered works of art. This distinction is extremely important because the law protects not the abstract idea itself, but its formalized expression at the code and program level.

The Ministry of Culture and Tourism's statements regarding copyright follow the same line. According to the Ministry, protection arises naturally from the moment the work is created; registration with an institution is not a requirement for protection. The optional registration process is not a mandatory formality that creates rights; it is a declaration-based process that facilitates the identification of the author. Therefore, a software does not need to be registered first to be protected under copyright law. Protection begins automatically when the conditions are met.

What exactly does unlicensed software mean?

Simply put, unlicensed software is software used outside the scope of the usage permission granted by the rights holder or authorized distributor. The critical point here is that "access to software" and "the right to legally use the software" are not the same thing. A company may possess an installation file, serial number, invoice, or a previously purchased license; however, this does not automatically mean that the current use is legal. This is because the license's duration, number of users, number of devices, version coverage, update rights, remote access limitations, and commercial usage conditions are all considered separately.

In practice, the most common area of ​​infringement is the loss of licensing discipline as the scale of a company grows. Installing a single license on four computers in the accounting department, using an educational license for a commercial project in an architectural office, making a trial version permanent in a design agency, or opening a server license to desktop users, while seemingly "technical convenience" from the outside, can result in copyright infringement under the Turkish Copyright Law. This is because the exercise of financial rights is strictly tied to licensing limitations.

Why is the right to reproduce so important?

According to Article 22 of the Copyright Law, the right to reproduce the original or copies of a work, in whole or in part, directly or indirectly, temporarily or permanently, in any form or by any method, belongs exclusively to the author. The same article also considers the recording of the work on various media as reproduction. In terms of software, this practically means that while installing a program on devices, loading it into memory, copying it to a server, transferring it to a virtual machine, or storing it may seem like ordinary technical operations, they are directly related to the right of reproduction under copyright law. Therefore, the defense of "I only used it, I didn't reproduce it" is insufficient in many cases.

This is precisely where license infringement and copyright infringement converge. Because use exceeding the license limit often also means unauthorized reproduction, storage, or commercial use. Using a single copy of the software by duplicating it across a network instead of on a single device, making it accessible remotely, or distributing it among employees can be considered an infringement of the exclusive right to reproduce the work. For companies in particular, the risk is not just an "incomplete license invoice," but also the encroachment on the financial rights protected by law.

The line between lawful use and infringement

The Turkish Copyright Law (FSEK) also grants certain limited freedoms to legally acquired users of computer programs. According to Article 38, in the absence of a decisive provision in the contract, the reproduction and processing of a computer program by the person who legally acquired it, including error correction, is permitted to the extent necessary for its intended use. The same article also stipulates that the installation, execution, and error correction of a legally acquired program cannot be prevented by contract; and that making a backup copy, as long as it is necessary for use, cannot be prohibited. Furthermore, the user may, under certain conditions, observe and test the program to understand the underlying ideas and principles, and perform necessary technical operations for its interim functionality.

However, these freedoms are often misinterpreted. These exceptions granted by law apply only obtain the program through legal means . In other words, Article 38 does not provide a defense shield for cracked, illegally copied, expired, or exceeded user limits software. A company saying "we made a backup," "we installed it but didn't use it," or "we ran it to test it" may not change the outcome if the licensing relationship is not legally valid. This is because the exception is a narrow scope of use granted to legitimate users; it is not a general freedom that legitimizes unlicensed use.

Under the Law on Intellectual and Artistic Works (FSEK), in what situations does copyright infringement occur?

Copyright infringement stemming from unlicensed software often manifests in several forms. Firstly, it involves reproducing the program without the written permission of the copyright holder. Secondly, it includes distributing reproduced copies within or outside the company. Thirdly, it involves storing, keeping, or incorporating the software into corporate activities for commercial purposes. Fourthly, it includes public transmission or access via a network beyond the limits of the license. Fifthly, it involves circumventing protection systems. Article 71 of the Turkish Copyright Law serves as a framework provision that criminalizes many of these actions.

For example, an engineering company sharing a single-user CAD license with ten employees, an accounting office continuing to use expired software, an advertising agency using a training license on client projects, or an external IT firm installing a cracked version of a software program on the company system, could all constitute copyright infringement depending on the specific circumstances. This is because it's no longer just a breach of the license agreement, but a direct interference with the copyright holder's financial rights. This interference often has more serious consequences for companies than they realize.

Compensation and triple payment claim

One of the most severe civil consequences under the Law on Intellectual and Artistic Works (FSEK) is the right of special claim stipulated in Article 68. According to this article, the rights holder may demand from those who, without written permission, modify, reproduce, distribute, perform, or publicly transmit the work through means of signal, sound, or image transmission, a price up to three times the amount they would have demanded if a contract had been made, or the current market value. The same article also stipulates that if the unauthorized copies have not been offered for sale, the rights holder may demand their destruction, their delivery at a reasonable price, or a price up to three times the original value.

This provision clearly demonstrates why unlicensed software lawsuits cannot be reduced to a simple "missing license fee" calculation. Because the rights holder can claim not only the missing license fee but also a significantly increased amount thanks to the special protections provided by the law. This amount can reach very substantial levels, especially in commercially valuable engineering, design, accounting, ERP, database, and production software. Companies often think, "We'll buy a license now if necessary," when they become aware of the infringement; however, the financial risk created by past usage can be many times higher than the cost of purchasing a license later.

Prevention, prohibition, and precautionary measures against rape

The Turkish Copyright Law (FSEK) does not only grant the rights holder the right to claim monetary compensation. According to Article 66, a person whose moral and financial rights have been infringed can sue the infringer for the cessation of the infringement. This means eliminating the infringement, ceasing use, and remedying the unlawful situation. In software disputes, this corresponds to removing unlicensed installations, deleting them from systems, blocking access, and breaking the replication chain. For companies, this type of lawsuit is extremely critical, as it can often result in direct intervention in the software that is central to their commercial activity.

Article 77 stipulates that a precautionary measure may be issued if there is substantial harm, imminent danger, or the possibility of a fait accompli. The court may order the performance or prohibition of an action; decide on the closure or reopening of a place where the work is performed; or order the safekeeping of duplicated copies or means of reproduction. In unlicensed software disputes, this may mean suspending the use of certain programs, protecting copies, or taking precautions regarding technical equipment, even before the conclusion of the case. Therefore, the risk is not only the compensation to be paid in the end; it may also involve temporary judicial interventions that could disrupt the workflow.

Criminal aspects: Is unlicensed software a crime?

Article 71 of the Copyright Law regulates the criminal aspects of copyright infringement. According to this article, anyone who, without the written permission of the copyright holder, processes, represents, reproduces, modifies, distributes, publicly transmits, publishes, or offers for sale, sells, rents, lends, 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. The importance of this provision is significant for software; because company use is almost always outside of personal use and is often directly linked to commercial activity.

Therefore, the presence of unlicensed software in a company's system may not remain merely a private law dispute. In particular, the possibility of a criminal investigation arises if the program is knowingly installed, its protection is breached, it is distributed to employees, used in the center of commercial activity, or illegal copies are stored. It is important to note that not every licensing dispute automatically results in conviction; however, as the scope of the act expands and its commercial nature becomes more pronounced, the suspicion of a crime under Article 71 strengthens.

2021 change and rendering technological measures ineffective

Another important aspect of the penal provisions of the Turkish Copyright Law is Article 72. According to current WIPO records, Law No. 7346 amended Article 72 on December 25, 2021, specifically addressing the circumvention of technological safeguards. Legal publications also indicate that the scope of this amendment has been broadened to target products, tools, and services designed to disable effective technological safeguards such as access control, encryption, and reproduction control, while the penalty remains imprisonment for six months to two years.

This change is particularly important with regard to unlicensed software. Many infringements occur not only through unauthorized use, but also through tools that bypass activation systems, license key verification, and protection programs. If software used within a company is activated not only through unauthorized installation but also by circumventing technological protection measures, the matter becomes even more serious. Thus, the case may involve both classic copyright infringement and a simultaneous discussion of penalties related to circumventing protection measures.

How does an investigation begin?

According to Article 75 of the Copyright Law, investigation and prosecution for the offenses listed in Articles 71 and 72 are subject to complaint. Furthermore, for a complaint to be considered valid, rights holders or the professional associations of which they are members must submit documents and other evidence proving their rights to the Public Prosecutor's Office. Failure to submit these documents within the complaint period will result in a decision of no grounds for prosecution. This system, while making the active application of the rights holder mandatory, also increases the importance of licensing chains, ownership documents, and contractual authorization documents.

In practice, this means that when the rights holder or authorized representative discovers that the company is using unlicensed software, they can directly file a complaint. Along with the complaint, invoice records, license documents, product key data, usage reports, audit logs, screenshots, and other technical evidence can be submitted to the prosecutor's office. Therefore, the company's "it won't be noticed anyway" approach is legally very risky; because once a complaint is filed, the dispute escalates from a technical claim into a criminal prosecution process.

Searching computers and the digital evidence process

In investigations into unlicensed software, digital evidence is often of central importance. According to Article 134 of the Code of Criminal Procedure No. 5271, if there are strong grounds for suspicion based on concrete evidence and no other means of obtaining evidence exist, it is possible to search computers and computer programs, copy records, and transcribe them into text. If the password cannot be decrypted or the confidential information cannot be accessed, temporary seizure of the devices may also be considered; furthermore, a backup of all data in the system is made, and a copy is given to the relevant party.

This regulation demonstrates just how technical and in-depth evidence gathering can be in software disputes. Installed program lists, license keys, log records, virtual servers, subscription history, user-based permissions, and network access data can all be included in the case file. Therefore, the risk for companies is not only the risk of legal classification but also the risk of technical review and digital evidence management. Companies with disorganized internal processes, scattered inventories, and incomplete documentation face a significant disadvantage in their defense.

Why are companies in a more vulnerable position?

There is a significant legal difference between individual and corporate users. For companies, unlicensed use is often for commercial purposes, becomes systematic, and spreads to multiple users. This means that elements such as "purchasing for commercial purposes," "importing or exporting," and "possessing or storing for purposes other than personal use," as mentioned in Article 71 of the Turkish Copyright Law, are more easily realized. Furthermore, if an installation made by an employee is used within the employer's system and commercial workflow, it effectively places the company at the center of the dispute.

Another vulnerable point for companies is that the burden of proof is practically tied to document submission. Article 76 of the Copyright Law stipulates that specialized courts have jurisdiction in cases arising from legal relationships regulated by this law. This specialized judicial regime is particularly important due to the technical nature of copyright and software cases. Although Article 76 is not quoted in its entirety here, this article confirms that copyright disputes are considered a field requiring special expertise in practice. This means that the "ordinary commercial litigation" approach will be insufficient for companies.

What should be done to protect against unlicensed software?

The most effective approach is not to develop a defense after a dispute arises, but to ensure license compliance before a dispute occurs. To this end, companies need to maintain an up-to-date software inventory for all devices and users, clearly indicate which license each installation is based on, track subscription and renewal dates, separate training and trial versions from commercial systems, oversee installations by external IT companies, and regularly archive license documents. Because in copyright disputes, the strongest defense is not an abstract statement of good faith, but concrete documentation and a consistent inventory.

Furthermore, panicking and deleting software, wiping devices, or destroying records when a warning letter or audit request arrives is not a correct reflex. Such actions do not erase past violations; on the contrary, they can complicate the argument for evidence. The correct approach is to first assess the current situation; to determine which programs were used under which licenses, since when, and by whom, and to develop a legal strategy accordingly. In some cases, settlement and license completion may be economically feasible; in others, the scope of the violation, license interpretations, and technical status may provide a defense. However, in every scenario, the first step is to act in a controlled and documented manner.

Conclusion

Under the Turkish Copyright Law (FSEK), unlicensed software and copyright infringement represent a significant legal risk that should not be underestimated in today's business world. Computer programs are protected as works; protection is not dependent on registration; even the installation and storage of the program are related to the right of reproduction. Commercial use without the written permission of the rights holder can lead to civil lawsuits such as cessation of infringement and injunctive relief, as well as claims for triple compensation under Article 68 and criminal liability under Article 71. Moreover, Article 72, concerning the circumvention of technological measures, has gained even greater importance after the 2021 amendment.

Therefore, unlicensed software is not a "practical solution to reduce expenses"; it is often a source of risk that generates greater costs, lawsuits, investigations, and reputational damage. For companies in particular, software license management is no longer just an IT issue; it's a direct matter of compliance, contract management, and copyright law. License obligations ignored for the sake of short-term savings can lead to much more serious legal consequences in the long run.