UNLICENSED SOFTWARE USE OFFENCE AND PROTECTION OF SOFTWARE COPYRIGHT 19 March 2024
WHAT IS UNLICENSED SOFTWARE AND SOFTWARE PIRACY?
Unlicensed software refers to software that is used, copied, or reproduced without permission from the individual(s) holding the copyright.
Software piracy, on the other hand, entails the unauthorized copying, (including exceeding the permitted number of copies as per the license), selling, or sharing of licensed software, without the consent of the rights holder.
Software piracy is a significant issue not only in Turkey but also globally. Various legal regulations have been established on this matter in accordance with numerous laws.
ARE SOFTWARE PROGRAMS PROTECTED BY COPYRIGHT?
Copyright provides legal protection for works created by the intellectual efforts of their authors in all forms. Copyright safeguards the rights of the author against unauthorized usage (such as reproduction, publication, or copying) of their work.
Software programs are categorized under the “works of science and literature” as per Article 2.1 of Law No. 5846 on Intellectual and Artistic Works Law (“IAWL”) and are protected as works as long as they bear the characteristics of the creator. There is no requirement for registration or certification to obtain protection under IAWL for software. Copyright is automatically granted upon the creation of the work.
Therefore, the rights, both material and moral, of the software program owner are protected under the scope of IAWL.
WHAT IS THE OFFENSE OF UNLICENSED SOFTWARE USE AND WHERE IS IT REGULATED?
An individual who holds rights over software programs, in the event of a violation of their material and moral rights, can resort to various legal remedies provided by the law.
The offense of Unlicensed Software Use is subject to penal sanctions within the framework of legal regulations stipulated under the IAWL and the Turkish Criminal Code (“TCC”) numbered 5237.
According to Article 68 of the IAWL, a compensation lawsuit can be filed against those who use unlicensed software. In accordance with the relevant article:
“The right holders whose permission was not obtained may claim the payment of compensation of up to three times the amount that could have been demanded if the right had been granted by contract, or up to three times current value which shall be determined under the provisions of this Law, from persons who adapt, reproduce, perform or communicate to the public by devices enabling the transmission of signs, sounds and/or images the work, performance, phonogram or productions or who distribute reproduced copies thereof without written permission of the author pursuant to this Law.”
Therefoe, those who engage in the actions mentioned above regarding unlicensed software can be subject to compensation claims, up to three times the license fee.
Article 71 of the IAWL, titled “Infringement of Moral, Economic, or Related Rights”, also regulates the offense of unlicensed software use and its penalties. Within the scope of this article, individuals who use unlicensed software, without the permission of the rights holder, by “adapts, performs, reproduces, changes, distributes, communicates to the public by devices enabling the transmission of signs, sounds or images or publishes, or puts up for sale, sells, distributes by renting or lending or in any other way, buys for commercial purposes, imports or exports, possesses or stores for non-private use” shall be sentenced to imprisonment from 1 year to 5 years or a judicial fine. According to Article 75 of IAWL, the offense of unlicensed software use is subject to complaint.
Additionally, within the scope of the TCC “Crimes in the Field of Informatics”, Article 243 regulates unlicensed access to computer systems, while Article 244 addresses offenses related to obstructing, disrupting, destroying, or altering data within the system.
