Intellectual property rights
IP protection for software
What intellectual property rights are available to protect software and how do you obtain these rights?
Unlike common law jurisdictions that offer patent protection to software-implemented inventions and upon meeting certain criteria, even business methods, Turkey does not grant patent protection to software-implemented inventions and business methods. Copyright protection is the method that can be used to protect the ownership of rights over software.
If a copyrighted work such as a piece of software is created, it is not mandatory to register it, and one owns the copyright and protection at the time it is created or published. Nevertheless, there is a non-mandatory register system at the Directorate-General for Copyright in the Ministry of Culture and Tourism that requires little proof. The general term of protection is the lifetime of the author plus 70 years.
There is no application similar to a patent application required by a licensee.
Software and computer programs are classified under Class 09 of the Turkish Classification System published on the Turkish Patent and Trademark Office website; However, each piece of software may contain properties for more than one specific class, and this should be taken into account.
While software generally falls under copyright protection, industrial property protection can also be granted under certain conditions. If a software; works or runs with a machine or device, or is connected to a machine or device, together with the device, machine or system being patentable. 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 authorized to carry out the related transactions.
IP developed by employees and contractors
Who owns new intellectual property rights developed by an employee during the employment relationship? Do the same rules apply to new intellectual property rights developed by contractors or consultants?
Unless otherwise agreed due to special contracts entered into between the parties (employer and employee) or the nature of the work, the rights to designs created by employees shall in principle, in accordance with Act No. 6769, belong to the employer in accordance with the employee’s job descriptions and obligations as following from the employment contract; or because of the experiences and operations of the business organization.
For an invention to qualify as an “employee service invention”, it must be realized during the employment relationship. The employee is obliged to report the invention in writing to his employer without delay. In addition, 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 submit a declaration about the invention to their employer if the invention is made under the employment contract.
Joint ownership
Are there any restrictions on a co-owner of intellectual property’s right to use, license, charge or transfer its right to intellectual property?
Certain restrictions and joint ownership provisions exist, both for copyright and patents. You can find copyright, joint ownership provisions and restrictions in the Act on Intellectual and Industrial Rights (Act No. 5846). For patents, Law No. 6769 allows joint ownership and imposes restrictions on patent holders of IP rights.
According 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 given joint ownership.
If the design application or design belongs to more than one person, the partnership claim is decided in court in accordance with the agreement concluded between the parties, and if there is no such agreement between the parties, it is decided in accordance with the provisions. related to joint property in Turkish Civil Code No. 4721.
For a patent license to be granted to third parties in relation to the use of an invention, each of the rights holders must grant permission unanimously. Even in joint ownership, the owners’ rights cannot be separated in relation to patent applications or patent transfers. In addition, in the case of joint ownership, the rights holders can assign a joint representative.
Finally, according to Law No. 5846, if a work is created by more than one author and the work is of an inseparable nature, joint ownership shall be assumed and the provisions of ordinary partnership stipulated in 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 Penal Code.
Confidentiality obligations have been established for a number 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 also protected under Law No. 6769.
According to Turkish Commercial Law No. 6102, the protection of trade secrets is stipulated as unfair competition, and persons who act in violation of the duty of confidentiality regarding trade secrets and disclose trade secrets in bad faith; and employees, representatives and other contractors who trick employers into revealing trade secrets are punished with an administrative sanction or imprisonment for up to two years. In addition, under this law, employers can demand financial and non-financial damages from people who violate the confidentiality and non-competition clauses, causing unfair competition.
Regarding the protection offered during legal proceedings where legal documents become public knowledge, the Turkish Civil Procedure Law shall apply. Pursuant to Act No. 6100, parties who act in bad faith and use legal action in an unreasonable manner to gain access to trade secrets must be subject to part or all of a retention fee in addition to a disciplinary fine.
In addition, according to the amendment to the banking law published in the Official Gazette, dated 25 February 2020, with the exception of the mandatory provisions of the relevant legislation, client information has been specified as “client secret” and the criteria for the processing and transfer of said information shall be realized in accordance with the Personal Data Act (Act No. 6698). Customer secrets will not be shared with or transferred to third parties in Turkey and abroad, with the exception of exceptional cases specified in the Banking Act. Even in cases where the client gives express consent to the processing of his or her personal data, said data cannot be transferred or shared domestically or abroad without an express request or order from the client.
The regulation on the sharing of confidential information (the regulation) has been published in Official Gazette no. 31501, dated 4 June 2021. With reference to law no. 6493, the regulation is aimed at determining the scope, procedures and principles for the sharing and transfer of banking secrets and customer secrets. Within the framework of Article 73 of Act No. 5411, rules were given on confidentiality, exceptions and the definition of “customer secrecy”. In the regulation, all information about real and legal persons who become bank customers is included in customer confidentiality. With the regulation, banks have been required to set up 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 assessing the appropriateness of sharing requests. Finally, 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 confidential information with parties in the country or abroad to complete the transaction. For transactions such as domestic or international money transfer, international letter of credit, letter of guarantee, letter of reference, initiation of the transaction by the customer or introduction of an order by the customer through the distribution channels for electronic banking services have been considered as the customer’s request or instruction in the form of such shares.
Brand building
What intellectual property rights are available to protect branding and how do you obtain these rights? How can fintech companies ensure they don’t infringe on existing brands?
There are no specific regulations for the protection of intellectual property when it comes to fintech innovations. Intellectual property and industrial 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 with the Turkish Patent and Trademark Office. However, there is no registration obligation when it comes to intellectual rights.
According to Law No. 5846, the ownership of a fintech innovation will belong to its first creator, and he or she will be considered the 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 lifetime of the author plus 70 years.
Remedies for IP infringement
What remedies are available to individuals or companies whose intellectual property rights have been infringed?
According to Act No. 5846, authors whose intellectual property rights have been infringed may:
- file a civil action regarding the prohibition of the violation;
- file a civil action regarding the prevention of infringement;
- ask for compensation; or
- initiate criminal proceedings.
Pursuant to Act No. 6769, persons whose rights are violated may:
- file a civil action regarding alleged infringement;
- file a civil action to stop the infringement;
- file a civil action regarding the removal of infringement and request damages; or
- request that necessary precautions be taken.
