Legal Journal

Having An Idea Does Not Mean That You Have Its Intellectual Property

What is protected under intellectual property law?

The copyright protection covers the products of ideas. In this respect, an idea is not covered by copyright protection; no matter how innovative and/or unique it is, as long as such idea is not materialised. In this respect, materialisation does not mean gaining a physical identity, yet it would be sufficient when the work is being perceivable by third parties.

As a general speciality of products of ideas, they are not always a material subject; they sometimes include intangible concepts and obtain a different identity than the material they are created with.

There are several conditions for an artistic work to be protected according to Law No 5846 on Intellectual and Artistic Works. According to law, a product may be considered as an artistic work only if;

• it has its owner’s peculiarity (subjective element)
• it is materialised in a way that carrying out its owner’s peculiarity.
• it belongs to one of the types of artistic works listed in Law on Intellectual and Artistic Works (objective element)
• it is a product of an intellectual effort.
• it has an aesthetic value, as for works of fine arts.

In this perspective, ideas and principles which are subject to this study are only protected as an artistic work if they are formed in ways that carry out their owner’s peculiarity.

It should be mentioned that ideas, principles, procedures and methods are not protected as artistic works solely. In this scope, unfinished works, rough copies, drafts and preparation works may be counted as artistic works only if they are materialised and have the necessary qualifications. Determination of this distinction is not easy when the materialised “object” of the idea exists in the digital area.

Evaluation within the Scope of Computer Programmes

Evaluation of the computer programmes which can be defined as “artistic works that are materialised in an intangible form” can create confusion of the concepts, as mentioned above.

A computer programme is created with several phases. These phases build the structure of the programme; furthermore, they include ideas and principles which are basis of them. Overall, the parts which are subject to intellectual property protection are interval/detailed designs, elements of preparatory designs and codes of the programme which the ideas and principles are formed.

According to Law No. 5846 on Intellectual and Artistic Works Clause 2/i;

“Works that are expressed by language and writing in any form and computer programmes expressed in any form together with their preparatory designs, provided that the same leads to a computer programme at the next stage” are accepted as literary and scientific works. As it is understood from this clause; in order to define a computer programme as an artistic work, it should be expressed in some way. Also, in the sub clause which is added to this clause, the principle is expressed clearly as,

“Ideas and principles on which any element of a computer programme is based, including those on which its interfaces are based, are not deemed works.”

When we evaluate a computer programme’s interface or algorithm, we can come to a conclusion that these components are not counted as artistic works.

In this respect, as a principle, any idea or principle which is included as the basis of a computer programme component cannot be protected as an artistic work under Turkish law. This matter is a “mandatory norm” within the scope of Law on Intellectual and Artistic Works.

Comparison to International Law

According to Clause 2 of the WIPO Copyright Treaty which Turkey and ninety two contracting parties have agreed upon:

“Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.”

This clause specifies that ideas should be expressed or materialized in order to be protected as artistic works in general.

When we examine the European Union regulations in terms of computer programmes, we may see the regulation which consists the basis of the Law on Intellectual and Artistic Works; EU Council Directive on the legal protection of computer programs No. 91/250/EEC  is as follows;

“Expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright under this Directive”

The regulation in Turkish Law is parallel to the EU Directive in the scope of adaptation to European Union’s legal acquis. As it is specified in this clause, the legal protection extends to the “expression of a computer programme in any way”. In addition to that, ideas and principles which build the base of a computer programme, including the ones in interfaces, are not protected in terms of the above mentioned Directive.

On the other hand, this matter is also regulated parallel to WIPO Copyright Treaty, in United States of America in 17 U.S. Code § 102;

“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

In the perspective of this clause, we may come to a conclusion that ideas, process, procedures, operating methods, concepts, principles and discoveries cannot be protected under intellectual property law.

Conclusion

As a result, the distinction of the phases of a computer programme should be made in detail while evaluating the copyright protection. These phases of computer programmes should be materialised and they should not remain just as ideas or principles, in order to be subject of an intellectual property right. It does not matter how much the idea is authentic or creative. Thus, benefitting from intellectual property protection will only be possible by detailing the general design and giving a form to such programme’s basis.

Av. Derya Doğan