Intellectual property rights

IP protection for software

Which intellectual property rights are available to protect software, and how do you obtain those rights?

Unlike common law jurisdictions that offer patent protection to software-implemented inventions and upon the fulfilment of certain criteria, even business methods, Turkey does not afford patent protection to software-implemented inventions and business methods. Copyright protection is the method that can be utilised for protecting the ownership of rights over software.

If a copyrighted work such as a piece of software is created, it is not compulsory to register it, and one owns the copyright and the protection at the time it is created or made public. Nevertheless, there is a non-compulsory registry system at the General Directorate of Copyright of the Ministry of Culture and Tourism that requires little proof. The general protection period is the lifetime of the author plus 70 years.

There is no application similar to that of a patent application that is required of a copyright holder.

Software and computer programs are classified under class 09 of the Turkish Classification System published on the Turkish Patent and Trademark Authority’s website; however, each piece of software may contain characteristics of more than one specific class and this should be taken into consideration.

While software generally falls under copyright protection, industrial property protection can also be provided under certain conditions. If a software; works or runs with a machine or device, or is connected to a machine or device, together with that device, machine or system can be patented. Also, a computer program that performs a method that solves a technical problem can be protected by a patent. This protection is within the scope of the Industrial Property Law No. 6769 and the Turkish Patent and Trademark Office is authorised to carry out the related transactions.

IP developed by employees and contractors

Who owns new intellectual property developed by an employee during the course of employment? Do the same rules apply to new intellectual property developed by contractors or consultants?

In principle, pursuant to the Industrial Property Law (Law No. 6769), unless otherwise agreed upon because of special contracts made between the parties (employer and employee) or the nature of work, the rights to designs made by employees shall belong to the employer according to employees’ job descriptions and obligations arising from the labour contract; or owing to the experiences and operations of business organisation.

For an invention to qualify as an ‘employee service invention’, it must be realised during the course of employment. The employee is obliged to report the invention to his or her employer in writing without delay. Additionally, free inventions that are the employee’s inventions outside the scope of employee service inventions are also subject to reporting obligations for employees, who must make a declaration of the invention to their employer if the invention is made during their employment contract.

Joint ownership

Are there any restrictions on a joint owner of intellectual property’s right to use, license, charge or assign its right in intellectual property?

Certain restrictions and joint ownership provisions exist, both for copyright and patents. For copyright, joint ownership provisions and restrictions find form within the Law on Intellectual and Industrial Rights (Law No. 5846). For patents, Law No. 6769 provides that joint ownership is permissible and imposes restrictions upon the patent holders of IP rights.

Pursuant to Law No. 6769, if an invention is made by more than one person, each of the inventors may apply for a patent and these inventors shall be granted joint ownership.

If the design application or design belongs to more than one person, the partnership claim on the right shall be determined pursuant to the agreement concluded between the parties, and if there is no such agreement between the parties, it is determined in accordance with the provisions related to joint ownership in Turkish Civil Code No. 4721.

For a patent licence to be granted to third parties in relation to the use of an invention, each of the right owners must grant permission unanimously. Even in the case of joint ownership, the rights of the owners may not be separated in relation to a patent application or patent assignment. Additionally, in the case of joint ownership, the right owners may assign a joint representative.

Finally, according to Law No. 5846, if a work is created by more than one author and if the work is of an inseparable nature, joint ownership shall be assumed and the provisions regarding ordinary partnerships stipulated under Turkish Obligations Law No. 6098 shall apply.

Trade secrets

How are trade secrets protected? Are trade secrets kept confidential during court proceedings?

Trade secrets are protected under several Turkish regulations, including the Turkish Criminal Code.

Duties of confidentiality are established for a variety of parties, including but not limited to, board members, shareholders, proxies, auditors, employees and contractors. Trade secrets, such as technical production secrets, production methods, and research and development plans, are protected also under Law No. 6769.

According to Turkish Commercial Law No. 6102, the protection of trade secrets is stipulated as unfair competition, and persons that act in violation of the confidentiality obligation regarding trade secrets and disclose trade secrets in bad faith; and employees, representatives and other contractors that deceive employers into providing trade secrets, shall be subject to an administrative sanction or imprisonment of up to two years. In addition, pursuant to this Law, employers may request pecuniary and non-pecuniary damages from persons that violate the confidentiality obligation and non-competition obligation, causing unfair competition.

As for the protections offered during litigation processes where court records become public knowledge, the Turkish Civil Procedure Code shall apply. Pursuant to Law No. 6100, parties that act in bad faith and unreasonably utilise litigation proceedings to have access to trade secrets shall be subject to part of a or whole retainer fee in addition to a disciplinary fine.

Additionally, pursuant to the Amendment to the Banking Law published in the Official Gazette, dated 25 February 2020, save for the mandatory provisions of the relevant legislation, client information has been specified as ‘client secret’ and the criteria regarding processing and transfer of said information shall be realised in accordance with the Personal Data Protection Law (Law No. 6698). Customer secrets will not be shared with or transferred to third parties in Turkey and abroad, except for exceptional cases specified in the Banking Law. Even in cases where the client grants explicit consent regarding the processing of his or her personal data, said data may not be transferred or shared domestically or abroad without the explicit request or order of the client.

The Regulation on the Sharing of Confidential Information (the Regulation) has been published in Official Gazette No. 31501, dated 4 June 2021. Also referring to Law No. 6493, the Regulation is aimed at determining the scope, procedures and principles of the sharing and transfer of bank secrets and customer secrets. Within the scope of article 73 of Law No. 5411, regulations were made regarding the confidentiality obligation, exceptions and definition of ‘customer secret’. In the Regulation, all information regarding real and legal persons becoming bank customers is included in the scope of customer secret. With the Regulation, it has been mandatory for banks to establish an information-sharing committee. The committee will be responsible for coordinating the sharing of customer secret and bank secret information, taking into account the proportionality factor, and recording these evaluations by evaluating the appropriateness of sharing requests. Last, due to the nature of the transaction, it has been necessary to interact with a bank, payment service provider, payment, security settlement or messaging systems established in the country or abroad, and it is a mandatory element of the transaction to share customer secret information with parties in the country or abroad to complete the transaction. For transactions such as domestic or international fund transfer, international letter of credit, letter of guarantee, reference letter, initiating the transaction by the customer or entering an order by the customer through the distribution channels for electronic banking services has been regarded as the customer’s request or instruction in terms of such shares.

Branding

What intellectual property rights are available to protect branding and how do you obtain those rights? How can fintech businesses ensure they do not infringe existing brands?

There are no specific regulations on intellectual property protection regarding fintech innovations. Intellectual and industrial property rights are generally protected by Law No. 5846 on Intellectual and Artistic Work and Law No. 6769. If fintech products or services are subject to industrial property rights (namely, a trademark or patent), a patent or trademark is required to be registered before the Turkish Patent and Trademark Office. However, there is no registration requirement in terms of intellectual rights.

According to Law No. 5846, ownership of a fintech innovation will belong to its first creator and he or she will be deemed an author. If an employee creates an innovation during the employment contract, the author will be his or her employer. The duration of the IP right is the life of the author plus 70 years.

Remedies for infringement of IP

What remedies are available to individuals or companies whose intellectual property rights have been infringed?

According to Law No. 5846, authors whose intellectual property rights have been violated may:

  • file a civil lawsuit regarding the prohibition of the infringement;
  • file a civil lawsuit regarding the prevention of infringement;
  • request compensation; or
  • file a criminal lawsuit.

 

According to Law No. 6769, persons whose rights are being violated may:

  • file a civil lawsuit regarding probable infringement;
  • file a civil lawsuit to cease infringement;
  • file a civil lawsuit regarding the removal of infringement and request compensation; or
  • request for necessary precautions to be taken.