Erdal Nuhbasa – Law and Consulting Firm – Legal Services
Erdal Nuhbasa – Law and Consulting Firm – Legal Services
In the modern software industry, intellectual property rights are one of the most critical and frequently debated issues for both software developers and employers. When a software developer creates a new application, algorithm, code library, or software product, to whom does the resulting work belong?
This question creates complex legal situations, particularly in employment relationships. Generally, intellectual property law (copyright, patents, trade secrets, etc.) protects the creator’s work while also allowing employers to claim rights over the outputs produced during the employment relationship.
Article 18/2 of the Law on Intellectual and Artistic Works No. 5846 states: Unless otherwise specified in a private contract between the parties or implied by the nature of the work, the rights to works created by civil servants, staff, and workers while performing their duties are exercised by those who employ or appoint them.
In other words, at the company, the commercial rights (the rights to sell, use, and monetize) to the code you write as part of your job generally vest in the employer/company. If you want to change this, there must be a clear provision in your contract.
Let’s say you work as a backend developer at a fintech company. You developed a payment system for the company during work hours. You cannot later leave the job and say, “I wrote this code, so now I’ll sell it to another company.” Yes, you wrote the code, but since you did so as part of your job, the economic rights belong to the company. You remain the author of the work, but you do not have the right to sell the code.
The employer is free to use the software as they see fit, exercising economic rights such as reproduction, distribution, and developing new projects. Moral rights—such as the right to be credited, the right to public disclosure, and the right to preserve the integrity of the work—remain with the developer under all circumstances and cannot be transferred.
Legally, the employer cannot exercise the author’s moral rights in their own name. For example, if an application is written by an employee and delivered to the employer, the employer may only publish that application under the employee-developer’s name. Otherwise, the author’s moral rights would be infringed.
If the employee is not subject to an employment contract (Turkish Civil Code, Art. 470), the situation is different. In an exception contract entered into with an independent developer (freelancer or consultant)—rather than with a full-time employee—Article 18/2 of the Copyright Law does not automatically apply. In other words, if a software company enters into an agreement with an independent developer who is not its employee, the economic rights to the resulting code do not automatically transfer to the company.
In this case, the developer remains the copyright owner, and the employer must sign a license or rights assignment agreement to use the code. Otherwise, even if payment has been made, using the developer’s software is unlawful. This is because it is not the transfer of funds but this agreement that determines the owner of the work.
Open source does not necessarily mean “completely free.” Some open-source licenses are very permissive (use it however you like), while others state, “If you include this in your commercial product, you must also make the source code for your entire product available.” This is called “copyleft.” Let’s explain this based on the different types of licenses:;
Reverse engineering—that is, analyzing how a piece of software works and deciphering its code to create a similar program that performs the same function—is generally considered a violation of intellectual property law. However, in Turkey, the Law on Intellectual and Artistic Works (FSEK) exempts reverse engineering under certain conditions. Pursuant to Article 38/2 of the Law on Intellectual and Artistic Works, a person who has lawfully obtained software may examine the program to understand its concepts and principles and may obtain the necessary code information to make it compatible with other software. This grants the user the freedom to observe how the code operates while running the program.
For example, if a company has obtained an unregistered copy of software written for a client, it may analyze only the lines of code necessary for compatibility. However, the scope of this exception is limited: The information obtained must be used solely for compatibility purposes and may not be used to develop new software or to plagiarize the work.
In practice, many software licenses contain provisions stating that “reverse engineering is prohibited.” In Turkey, the compliance exception applies. If significant reverse engineering is performed on confidential source code, this may constitute unfair competition and a breach of trade secrets. Therefore, while the code may be examined for compliance purposes when necessary, digital evidence (logs, emails) of these analyses must be retained.
In Turkey, there are various legal remedies available against those who attempt to steal or use your software without permission. In the event of copyright infringement, the copyright owner may seek injunctive relief and damages in accordance with the provisions of the Law on Intellectual and Artistic Works. For example, Article 70(2) of the Law on Intellectual and Artistic Works (FSEK) stipulates that in cases of unauthorized use, the copyright owner may be compensated for economic losses and unjust enrichment through legally appropriate damages.
In addition, unauthorized copies in print or digital formats may be seized. Under Articles 70 and 68(1) of the Law on Intellectual and Artistic Works, damages of up to 1–3 times the license fee determined for the identified infringement may be sought. If the infringement is not ceased upon the rights holder’s request, the rights holder may file a criminal complaint to initiate criminal proceedings; copyright infringement is classified as a criminal offense under Article 71 et seq. of the FSEK. Claims for breach of trade secrets or business secrets may also be pursued under the Turkish Commercial Code and the Unfair Competition Law.
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