What is Source Code? How is Source Code Transferred? 25 December 2019
Under article 2/1 of the Law on Intellectual and Artistic Works (“LIAW”), computer programs, are considered as scientific and literary works. Since computer software has characteristics of works that are subject of intellectual property, they are protected by copyrights.
Computer programs basically consist of object code and source code. Source code is coded in a specific programming language by a programmer and it can be read by a person who knows this specific language also it is possible to make changes and improvements on this code. When a program is in the level of source code, it is useless for computers. Because the source code cannot be understood by the computer, it must be transformed into object code so that the computer can understand it, with an additional process.[1]
License Agreements:
Many computer program manufacturers establish legal relationships with third persons to provide required capital. In this context, specific financial rights can be transferred or the transfer of authority to use the financial rights (license agreement) can be concluded. It is important that whether software developer who owns the work, wants to transfer rights such as change or replacement of program to transferee or not. If the parties agree that the source code is transferred to the business owner, it is accepted that the producer shall grant the business owner the right to change the software.[2]
Besides that, software must be transfer to business owner in such a manner that it could be used or benefited. In other words, the software developer who coded the program must transfer some kind of financial rights related to program that are subjects of intellectual property when he transfers program.[3] These rights are especially required for the employer to use and benefit from the program. As stated in article 48 of the LIAW, it can be decided by parties with an agreement that when the program is delivered which intellectual property rights will be transferred and the extent of them.
Accordingly, License Agreements grant transferee only the right to use the right, without it leaving the assets of transferor. The difference of the license from the transfer is that it only authorizes the use of certain specific right or rights. According to the 8th article of Regulation on the Record and Registration of Intellectual and Artistic Works, authorization of use and transfer regarding the financial rights on works and productions can be registered by the Ministry upon request.
Source Code Escrow Agreement:
One of the ways to do source code transfer is to conclude a source code escrow agreement. Parties of the contract consist of software owner, a person who uses the software incompliance with the legal transaction that gives him/her the right to use this software and escrow agent. The basic obligation of escrow agent is to ensure that source code concerning the software is safely stored and to ensure the confidentiality of the source code. Otherwise the software owner will be entitled to claim damages arising from this situation from the escrow agent since the source code has characteristics of trade secret. The importance of source code for the user is seen at point of timely and qualified updates. Software cannot be developed, updated, repaired without source code. Within the scope of master agreement which is a part of source code escrow agreement, the software owner transfers his/her right to use his/her software to third parties and promises to make necessary maintenance and updates of the software in a timely manner. The escrow agent, who is considered to be a neutral third party, also has the source code. In case software owner does not perform his obligation, the source code can be reported to the other party by the escrow agent. Therefore, the usage right of holder of right is guaranteed.[4]
In conclusion, under article 48 of LIAW, it is understood that disposal on material rights is possible, owner of the work has financial rights on the source code and this financial rights can be transferred. In compliance with the article 52 of LIAW, agreement in question must be concluded in written way and by separately specifying each right. Bearing in mind that there is no patent protection for software in Turkey, it is fundamental to specify every element in agreement and the scope of the use of financial rights with the purpose of ensuring protection for the owner of the work in order to not experience any loss of right or malfeasance.
Türkçe Versiyonu İçin: http://www.kasaroglu.av.tr/tr/Kaynak-kodu-nedir-nasil-devredilir
