Legal Journal

Changes In The Definition Of Computer Program

During the harmonisation process of Turkish law with the EU legislation, Law on Intellectual and Artistic Works No. 5846 has changed significantly in 1995, 2001, 2004, 2005, 2007 and 2008. Computer Programs are clearly recognized as “works of art” in 1995 and many privileges are granted to them which are not granted for other types of works of art. Article 2 (1) of the Law No. 5846 which was amended by Law No. 1995/4110 indicates that;

“2. Works of science and literature are as follows: 1) Works expressed in language and writing in any way and computer programs expressed in any form and their preparatory designs, provided that nature of the preparatory design is such that a computer program can result from it at a later stage”

It is clear from the wording of the Law that preparatory designs may be considered as “works of art” only if they become a computer program in the latter stages. Since the wording of the above mentioned article includes “and” as a conjunction, it can be concluded that when the creation process of a computer program is realized, we can speak of two individual works of art: (i) preparatory design and (ii) computer program. In other words, if the development process of a computer program is completed, then preparatory designs which are the first phases of such process shall be protected as works of art.

There is a tendency to amend the above mentioned Article in one of the latest Law drafts throughout the EU harmonisation program. The draft article is as follows;

“Any form of the computer program, including the preparatory design which has the qualification to lead to a program”

The suggested amendment is compatible with Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs and “harmonisation working report”. With this amendment, preparatory designs are no more considered as individual works of art and they are evaluated within the computer program which is defined as a work of art. Although according to the current Law, the computer program is only considered as including “codes” written by software developers, with this amendment, any kind of preparatory designs including workflow diagrams shall be considered within the computer program.

The suggested amendment may cause problems with regards “authorship” for the reasons that the developer of a preparatory design and the code writer may not always be the same person and authors of such works of art may be two different people.

Additionally, a person is not always required to be a software developer in order to participate in the preparatory design process. With the suggested amendment, a person participating in the preparatory design process will have the rights of “joint authorship” together with the software developers. Therefore anyone, participating in the preparatory design process, may claim being “one of the authors” of a computer program; as there is not any definition for preparatory designs in the draft Law.

Although the suggested amendment may have some positive sides, it is clear that the practice may be problematic with regards to determination of authorship rights. Therefore it is crucial for a Software company to define clearly the phases of the program development process and properly record any person who participates in these processes.

Av. Haluk İnanıcı