Until very recently, and in contrast to the EU member states, the sale of second-hand computer software was considered illegal in Turkey, due to copyright infringement. Nevertheless, in a recent decision of the Court of Appeals, it was resolved that the reselling of computer software which has been purchased by the original acquirer, onto whose computers the software was originally downloaded, does not infringe the copyrights of the software company. The facts of the case are summarised below:
The supply of the software to the market for the first time
The software is legally supplied to the market for the first time with the sale of the computer onto which the software is to be downloaded.
The distribution of the software to the second-hand market
The original acquirer transfers the software to a third party in the form of a CD (as per the referenced case), and separately from the computer itself; on the second-hand market.
The copyright holder’s claim of licensing
The software company claims that the first supply of the software onto the market with the sale of the computers does not include the sale of the software. Moreover, they allege that only a usage license has been granted to the original acquirer and that the related software can only be transferred to the usage of the third parties under certain condition, for example, through the sale of the computer.
The reasoning of the Court of Appeals
At the end of its examinations, by also emphasizing the similar precedents of the European Court of Justice, the Turkish Court of Appeals concluded that the copyright holder’s claim of licensing did not have a legal basis in terms of intellectual property. Accordingly, the mandatory provision of the related law enables the re-sale of the products subject to copyright protection and shall invalidate the licensing provision which aims to control the second-hand market. Said protection is provided upon the supply of the products into the market for the first time with the consent of the copyright holder.
The mandatory provision which the Court of Appeals mentioned in its decision is the “exhaustion principle”. We believe that such interpretations of this principle will create a significant precedent in similar cases and will have a direct effect on the Turkish TMC sector.