ABSTRACT
Computer programs are accepted as pieces of work within the scope of the Code No. 5846 on Intellectual and Artistic Works (“CIAW”). Accordingly, various legal and punitive sanctions are envisaged in the CIAW against the violation of the economic and moral rights of the author on computer programs. In this context, adaptation, reproduction and other use of computer programs by third parties without a valid transfer or license from the owner of the work constitutes copyright infringement. However, the CIAW regulates the reproduction of a work for “personal use” as an exception, so it does not constitute a violation. This makes it necessary to consider the issue of reproducing computer programs online, downloading unlicensed computer programs for personal use, and keeping them on the computer. When such an unlicensed use is detected, especially in commercial enterprises, it is controversial whether it falls within the scope of the exception. Although reproduction for personal use is permitted in the CIAW, various problems arise in the application of this exception in terms of computer programs. In our study, these issues are evaluated in light of the doctrine and the practice of the Court of Appeals.
Adaptation, reproduction and other use of computer programs by third parties without a valid transfer or license from the owner of the work constitutes copyright infringement.
I. INTRODUCTION
A computer program is defined as “a computer command system arranged in a way that enables a computer system to perform a special operation or task, and the preparatory works that will enable the formation and development of this command system” (CIAW1 art. 1/g). Within the framework of this definition, a computer program includes ready-to-use programs as well as preparatory works that will result in the program in the next stage2. Pursuant to art. 2 of CIAW, both computer programs and preparatory works, provided that they result in the program at the next stage, are accepted as “works” under the category of “science and literature works”. It is in accordance with the system of the Code that computer programs, which are mostly produced as a result of intense intellectual effort, benefit from copyright protection under the CIAW3. In principle, the provisions on the protection of intellectual rights in the CIAW are also applicable to computer programs, as long as they do not differ by nature or contradict their qualifications4.
For a computer program to be protected as a work, it must meet the conditions stipulated in the CIAW5. It means that the computer program should bear the characteristics of the author, in other words, it should not be a program that can be created by anyone. Secondly, computer programs to be defined as “works” in the Code is the formal condition required. As explained above, computer programs are accepted as “works” in the Code and the established case-law of the Court of Appeals6. To the extent that it meets these conditions, every computer program benefits from the copyright protection stipulated in the CIAW.
The person who has the rights to the computer program also has the economic rights regulated in the Code, which are adaptation, reproduction, distribution, representation and transmission to the public. In addition to criminal sanctions under the Articles 71 and 72 of the CIAW, violation of these rights also allows the right holder to file a lawsuit for detection, prevention and removal of violations and civil lawsuits for compensating pecuniary and non-pecuniary damages7.
With the widespread use of the internet, it is known that computer programs are uploaded to the internet in a pirated way and that internet users can download computer programs from there without a license. Uploading a computer program into circulation over the Internet without permission violates the distribution right of the author and, in some cases, his/ her right of transmission to the public. “In this context, the developer of the program is authorized to allow or prohibit downloading, copying or installing a program on personal computers or various digital media, free of charge or paid, over the internet”8. It is possible to take legal and criminal actions based on copyright infringement against those who distribute computer programs on online platforms without such permissions/ licenses.
It is not possible to say that people who download pirated computer programs uploaded to the internet violate the distribution right of the author of the work. In other words, uploading an unlicensed computer program to the internet and making it accessible to third parties violates the “distribution right” of the author and the “right to transmit to the public” according to the conditions of the concrete case. In this respect, a counter-opinion or discussion cannot be found in the doctrine. On the other hand, downloading unlicensed programs over the internet, which is the main subject of our study, violates the author’s reproduction right, because downloading an unlicensed program from the internet is considered as reproducing a computer program. The reason for examining the issue of downloading unlicensed programs in our study is the existence of some exceptions in terms of the reproduction right, although it is not foreseen in the distribution or other economic rights.
To illustrate, there are regulations stating that there may be no copyright infringement if the reproduction is made for personal use. It is not clearly regulated in the Code whether downloading computer programs from the internet can be considered within this scope. This problem will be discussed in more detail below within the framework of the concept of personal use.
II. REPRODUCTION FOR PERSONAL USE UNDER CIAW AND COMPUTER PROGRAMS
A. Reproduction For Personal Use
In parallel with comparative and international law regulations, the economic rights of the author are delimitated for certain reasons in Turkish law9. The most important of these is that the author cannot claim any rights or demands in case of reproduction of the work for personal use. Pursuant to art. 38/1 of the CIAW; “it is possible to reproduce all intellectual and artistic works for personal use without profit. However, this reproduction cannot harm the legitimate interests of the right owner without a justified reason or cannot be contrary to the normal use of the work”. In order to reproduce the work based on personal use within the scope of this article; i) the use should be of a personal nature, ii) the legitimate interests of the author should not be harmed unjustly, and iii) it should not exceed the limits of normal use of the work.
Although such a regulation is included in the Code, personal use is not defined and its boundaries are not clearly drawn. In the doctrine, it is stated that personal use encompasses the personal needs of the reproducer himself, as well as a close and personal environment such as family and business environment, and even legal persons, although it is controversial, will be included in this scope10. However, taking a work related to the field of activity of a factory and giving it to factory employees by reproducing it can no longer be considered as personal use11.
The most essential feature of personal use is to use it without the purpose of making a profit12. The purpose of making a profit may be to earn an income through reproduction, as well as the reproductions made for the purpose of saving expenses may exceed the personal use limit13. In this context, reproduction in excess of those required for personal use constitutes a presumption of profit motive14.
In addition, the reproduction of the work for personal use requires the reproducer to have a justified cause and not exceed the limits of normal use15.
US court decisions look at four key criteria for determining personal use. These are:
a) Purpose and character of use
b) The type/ nature of the reproduced work
c) Reproduction amount
d) The market value of the reproduced work and the effect of the reproduction on the market16.
These criteria allow to determine whether the use is “personal”, in other words, if it exceeds these criteria it is no longer accepted as personal use. In our opinion, it should be accepted that the above-mentioned criteria are suitable to be applied in terms of Turkish law and will help in determining the individuality of use.
In our legislation, it is not specified for what purposes personal copies can be made. However, in comparative law it is accepted that personal use covers specific and non-commercial purposes such as education, training and research. The “fair use” concept, which is especially conceptualized in US law, accepts the reproduction of copyrighted works for purposes such as education, training and research. In other words, fair use is a concept that allows the reproduction of some or sometimes all of the works protected under copyright law due to social and intellectual requirements17. However, this concept is mostly used for a very small part of the printed works (such as 2-3 pages of a book), and reproduction of computer programs based on the “fair use” concept is not accepted. So reproduction of a computer program is considered copyright infringement under US law, even for educational purposes18. On the other hand, reproduction of computer programs for educational and research purposes without commercial purpose is not considered as copyright infringement in Australia19.
B. Reproduction of Computer Programs For Personal Use
Compared to other types of works, computer programs are easy to reproduce and it is difficult to control that20. For this reason, it is debatable in the doctrine whether the right to reproduce for personal use as stipulated in art. 38 of the CIAW in terms of computer programs is applicable or not21. Considering computer programs as a work within the scope of the CIAW and that computer programs are not excluded in art. 38/1 of the CIAW, it can be said that computer programs may also be reproduced for personal use. However, the inclusion of additional provisions on computer programs in the continuation of art. 38 also reveals an interpretation that the reproduction of computer programs for personal use is considered to be limited by these additional provisions22. One of the most important bases of this view is that there is no general regulation regarding the personal use of computer programs in the European Community Directive No. 91/250 on the legal protection of computer programs, but rather the reproduction of the program is allowed only in specific cases (in parallel with art 38/2 and further paragraphs of the CIAW).
Accordingly, those who consider that the personal use of the computer program is limited by the special regulations in the CIAW limit the reproduction of the computer program for personal use with only one backup copy pursuant to art. 38/2 of the CIAW. A backup copy is a backup of a computer program on a separate data carrier, so in other words, keeping a copy of it23. According to US law, it is possible to reproduce a computer program for archiving/ backup purposes or as required by the use of the program itself, provided that it does not exceed one copy24. Any reproduction beyond that is considered copyright infringement. Dalyan is of the opinion that it is not possible to reproduce computer programs for personal use except as stipulated in art. 38/2-3 of the CIAW25.
On the other hand, according to Suluk and Orhan; computer programs may be reproduced for personal use pursuant to art. 38 of the CIAW, provided that the programs are acquired by legal means26.
As it can be seen, there is no clear provision in the legislation regarding the reproduction of the computer program for personal use, and there is no consensus in the doctrine. However, those who accept the reproduction of computer programs for personal use require that the said program be acquired through legal means. In other words, even if reproduction for personal use is accepted, this reproduction must be done on the copy obtained through legal means.
Pursuant to art. 38/3 of the CIAW; “in the absence of decisive provisions in the contract, the person who obtained the computer program through legal means can reproduce or process it, if it is necessary for the proper use of the computer program for the intended purpose, including error correction”. Therefore reproduction or adaptation of a computer program within the scope of this article is only possible for persons who acquired the program through legal means27. Acquiring through legal means includes obtaining the right to use within the framework of one of the Law of Obligations agreements such as sale, donation, rent or loan, in addition to a license or transfer agreement. Similarly, it includes acquisition pursuant to a specific law provision or provisions of inheritance law within this scope28. Therefore, whether there is a legal relationship or not, the use based on possession or property right protected by the legal order means acquiring through legal means.
C. Evaluation of Unlicensed Computer Programs Downloaded from the Internet
As stated above, reproduction of a computer program for personal use is controversial in the doctrine. However, even those who believe in the doctrine that computer programs can be reproduced for personal use accept that this reproduction is only possible for those who acquire the program through legal means. The Court of Appeals is also of this opinion29. Therefore, reproducing a computer program by downloading it from the internet or by cracking a password from another computer is illegal, even for personal use. In other words, “it is clear that copying computer programs, even if it is on the internet, violates copyrights, unless the freedom to reproduce and benefit from computer programs is expressly stated or they are open source”30.
As it can be seen, downloading unlicensed computer programs from the internet constitutes a copyright violation. Since the program uploaded to the internet is not “acquired through legal means”, such download activity cannot be evaluated as “personal use” in accordance with art. 38 of the CIAW.
However, if the person downloading the unlicensed program be a student who wants to improve himself/ herself or a non-purchasing individual and using the downloaded program for non-commercial purposes, should it be considered a copyright violation31 It is clear that this is a copyright violation within the framework of the explanations above and the Court of Appeals’ decisions. However, the severity of the sanctions envisaged in the case of copyright infringement (especially triple compensation under art. 68 of the CIAW) may result in unfair outcomes. In other words, the copyright owner will be able to obtain a much higher compensation than suffered, and the compensation will turn into a means of enrichment. For this reason, in terms of ideal law, it is imperative that the boundaries of the right to reproduce computer programs for personal use be drawn more clearly and fairly and brought into legal regulation.
D. Responsibility of Commercial Entities
As a rule, the use of an unlicensed program by a person raises the responsibility of the person in question. However, art. 66/2 of the CIAW has widened the scope of liability in case of unlicensed use by introducing an exception and regulated that some persons other than the actual perpetrator are also responsible. According to the aforementioned regulation; “If the infringement was committed by a representative or employees of a commercial entity while performing their services, a lawsuit may also be filed against the owner of the entity. The fault of the perpetrator or the persons mentioned in the second paragraph is not essential”. This article brings strict liability for commercial enterprises. Even if there is not a fault or intervention, downloading a computer program from the internet or using an unlicensed program by the authorities or employees of the commercial entity raises the liability of the entity for compensation32.
It should be noted that commercial enterprises often do not have the opportunity to reproduce a work within the scope of “personal use”, since they operate for the purpose of making profit, as the actions and transactions of the enterprise are in principle of a commercial nature. Within this framework, downloading a pirated program to a computer connected to the enterprise without obtaining a license, or reproducing a licensed software in violation of the contract and installing it on other computers in the enterprise constitutes copyright infringement, even if it is limited to internal works.
The point to be considered here is that there must be a link between the action of the employee or representative of the enterprise that constitutes copyright infringement and the enterprise. In other words, just working in a company does not directly require any action taken by the employee liability of the enterprise. As a matter of fact, upon the detection of an unlicensed program on the personal computer of a company employee in a case, the 11th Civil Chamber of the Court of Appeals made an evaluation “by considering whether the captured software program was used in company works, the defendant company personnel, who is alleged to be the owner of the laptop on which the program was installed, the training date and installation dates of this software” and overturned the District Court’s decision33. Thereupon, the District Court re-examined the file and stated, “there is no legal basis for the defendant company to be held liable for the software installed on the computer that was found in the car during a search, which does not belong to the company and that has not been proven to have been used in the company. Since it has not been proven that this program was used in the company’s business, when it was installed on the computer belonging to the company employee does not matter in terms of the liability of the company”. The decision was approved by the Court of Appeals34.
As explained under this heading and in the Court of Appeals’ decisions cited; it is not possible to apply the “personal use” provision for commercial enterprises. That means that the use of an unlicensed program by a commercial enterprise, its official or employee or downloading such a program from the internet constitutes copyright infringement. However, in every concrete dispute, the connection of the unlicensed program used/ downloaded by the representative/ employee in the enterprise should be determined, and if there is no link, the enterprise should not be held responsible.
III. CONCLUSION
As examined above, computer programs are accepted as works, provided that they meet the conditions stipulated in the CIAW. For this reason, computer programs also benefit from the provisions on the protection of works in the CIAW. However, it is disputed in the doctrine whether the possibility of reproduction without permission from the author for “personal use”, which is regulated in art. 38 of the CIAW, is applicable for computer programs. In short, personal use means the reproduction of a small part of a work for a specific purpose such as education, research, criticism, for oneself or family members or relatives, without intending to make a profit. Although there are those who say that art. 38/1 of the CIAW cannot be applied for computer programs; a group of scholars in the doctrine accept that computer programs will also be included in this scope, but in any case, the actual program to be reproduced for personal use must still be “legally acquired”. In this case, downloading unlicensed programs on the internet that are not legally acquired will constitute copyright infringement. On the other hand, if the person downloading and using the unlicensed program is performing this program within the scope of an enterprise’s activities; the responsibility of the enterprise will also be on the agenda within the scope of art. 66 of the CIAW.
BIBLIOGRAPHY
ABDULLAH ÇELİK, Fikir ve sanat eserleri üzerindeki çoğaltma ve yayma haklarının ihlali, ihlalin sonuçları, Doktora Tezi, İzmir 2010. ,
ALEX JONES, “The Protection of Computer Programs under TRIPS: The Subject Matter Issue”, Journal of Law and Information Science, 1999, V. 10, I. 1.
CANAN KÜÇÜKALİ, “Bilgisayar Programlarının Fikri Mülkiyet Kapsamında Korunması”, İstanbul Ticaret Üniversitesi Sosyal Bilimler Dergisi Covid-19 Sosyal Bilimler Özel Sayısı, Bahar 2020, I. 37.
EDUCOM, “Using Software: A Guide to the Ethical and Legal Use of Software for Members of the Academic Community”, https://wustl.edu/about/compliance-policies/computers-internet-policies/legal-ethical-software-use/ (Access date: 27.05.2022).
İLHAMİ GÜNEŞ, Fikir ve Sanat Eserleri Hukuku, Ankara 2022.
KERİM ARSLAN, Bilişim ve Yazılım Teknolojilerinin Fikri ve Sınai Mülkiyet Hakları Açısından Türkiye ve Uluslararası Alandaki Görünümü, Yüksek Lisans Tezi, İstanbul 2018.
PAUL I. KRAVETZ, “Copyright Protection of Computer Programs,” Journal of the Patent and Trademark Office Society, January 1998, V. 80, I. 1.
RICHARD A. POSNER, “The Eighth Annual Honorable Helen Wilson Nies Memorial Lecture in Intellectual Property Law - Do We Have Too Many Intellectual Property Rights”, Marquette Intellectual Property Law Review 9, Summer 2005, I. 2. SELİN ÖZDEN, Karşılaştırmalı hukukta bilgisayar programlarının korunması, Ankara Üniversitesi Sosyal Bilimler Enstitüsü, Yüksek Lisans Tezi, 2007.
ŞENER DALYAN, Bilgisayar Programlarının Fikri Hukukta Korunması, Ankara 2009.
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WILLIAM F. PATRY/ RICHARD A. POSNER, “Fair Use and Statutory Reform in the Wake of Eldred,” California Law Review 92, December 2004, I. 6.
YEONG ZEE KIN, “Getting the Shoe to Fit: Fine-Tuning Copyright Protection for Computer Programs”, Singapore Law Review, 1997, I. 18.
FOOTNOTE
1 The Official Gazette (OG) dated 13.12.1951, numbered 7981.
2 Şener Dalyan, Bilgisayar Programlarının Fikri Hukukta Korunması, Ankara 2009, p. 28.
3 Dalyan, p. 74.
4 Dalyan, p. 74.
5 Dalyan, p. 75.
6 Court of Appeals’ General Assembly of Civil Law, dated 18.9.2013, numbered E. 2012/1854 K. 2013/1366.
7 Canan Küçükali, “Bilgisayar Programlarının Fikri Mülkiyet Kapsamında Korunması”, İstanbul Ticaret Üniversitesi Sosyal Bilimler Dergisi Covid-19 Sosyal Bilimler Özel Sayısı, Spring 2020, I. 37, p. 113.
8 Dalyan, p. 144.
9 Dalyan, p. 158.
10 Dalyan, p. 159; Selin Özden, Karşılaştırmalı Hukukta Bilgisayar Programlarının Korunması, Ankara Üniversitesi Sosyal Bilimler Enstitüsü, Yüksek Lisans Tezi, 2007, p. 172.
11 Abdullah Çelik, Fikir ve sanat eserleri üzerindeki çoğaltma ve yayma haklarının ihlali, ihlalin sonuçları, Doktora Tezi, İzmir 2010, p. 146-147.
12 Tuğba Akdemir Kamalı, Bilgisayar Programlarındaki Değişikliklerin Sonuçları, Ankara 2019, p. 134; Çelik, p. 147
13 Dalyan, p. 159.
14 Çelik, p. 147.
15 Çelik, p. 148.
16 Yeong Zee Kin, “Getting the Shoe to Fit: Fine-Tuning Copyright Protection for Computer Programs”, Singapore Law Review, 1997, I. 18, p. 520.
17 William F. Patry/ Richard A. Posner, “Fair Use and Statutory Reform in the Wake of Eldred,” California Law Review 92, December 2004, I. 6, p. 1643.
18 EDUCOM, “Using Software: A Guide to the Ethical and Legal Use of Software for Members of the Academic Community”, https://wustl.edu/about/ compliance-policies/computers-internet-policies/legal-ethical-software-use/ (Access date: 27.05.2022).
19 Alex Jones, “The Protection of Computer Programs under TRIPS: The Subject Matter Issue”, Journal of Law and Information Science, 1999, V. 10, I. 1, p. 45.
20 Çelik, p. 155.
21 For different opinions see Dalyan, p. 161; Kerim Arslan, Bilişim ve Yazılım Teknolojilerinin Fikri ve Sınai Mülkiyet Hakları Açısından Türkiye ve Uluslararası Alandaki Görünümü, Yüksek Lisans Tezi, İstanbul 2018, p. 60-61.
22 İlhami Güneş, Fikir ve Sanat Eserleri Hukuku, Ankara 2022, p. 271; Çelik, p. 156.
23 Tuğba Akdemir Kamalı, Bilgisayar Programlarındaki Değişikliklerin Sonuçları, Ankara 2019, p. 134-135.
24 Paul I. Kravetz, “Copyright Protection of Computer Programs,” Journal of the Patent and Trademark Office Society, January 1998, V. 80, I. 1, p. 52.
25 Dalyan, p. 163.
26 Cited from Dalyan, p. 161: Cahit Suluk/ Ali Orhan, Uygulamalı Fikri Mülkiyet Hukuku, Genel Esaslar, Fikir ve Sanat Eserleri, V. II, İstanbul 2005, p. 566.
27 Çelik, p. 156.
28 Dalyan, p. 167.
29 Court of Appeals’ 11th Chamber of Civil Law, dated 10.12.2014, numbered E. 2014/10237 K. 2014/19384; Court of Appeals’ 11th Chamber of Civil Law, dated. 20.1.2014, numbered E. 2013/12072 K. 2014/1113; Court of Appeals’ 11th Chamber of Civil Law, dated 20.3.2013, numbered E. 2012/5929 K. 2013/5486.
30 Güneş, p. 377
31 Richard A. Posner, “The Eighth Annual Honorable Helen Wilson Nies Memorial Lecture in Intellectual Property Law - Do We Have Too Many Intellectual Property Rights”, Marquette Intellectual Property Law Review 9, Summer 2005, I. 2, p. 179.
32 Court of Appeals’ 11th Chamber of Civil Law, dated 10.12.2014, numbered E. 2014/10237 K. 2014/19384.
33 Court of Appeals’ 11th Chamber of Civil Law, dated 11.03.2013, numbered E. 2012/5329, K. 2013/4675.
34 Küçükali, p. 43
