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Related guides: Patentability of Software: European Patent Office (EPO) Case Law · Intellectual Property in Software: Legal Protection Strategies for Computer Programs
The legal protection of software is a field shaped largely by case law rather than by abstract norms alone. Questions such as when a computer program counts as a “work”, which technical method should be used to examine copying allegations, who owns the rights in software developed by an employee, and under what conditions a software-based invention can be patented are answered more in court decisions than in statutory texts. In this article, we present Court of Cassation (Yargıtay) decisions that guide the application of Law No. 5846 on Intellectual and Artistic Works (FSEK), together with decisions of the European Patent Office (EPO), which sets the global standard for computer-implemented inventions (CII), classified by subject and accompanied by summaries and our assessments. Our aim is to provide everyone who develops, buys or licenses software with a reliable reference on which they can base their pre-dispute and post-dispute strategies in light of the realities of case law.
The decisions in this section set out the conditions a computer program must meet to be considered a “work” within the meaning of the FSEK, and the limits of protection.
Court of Cassation, 11th Civil Chamber, dated 22.02.2007, E. 2005/11944, K. 2007/3304
Subject: Ex officio investigation by the court of whether a computer program qualifies as a work.
Summary of the Decision: Whether a computer program is a scientific and literary work within the scope of FSEK Art. 1/B and Art. 2/1 must be determined through an expert examination ordered by the court ex officio (on its own initiative), without leaving it to the claimant's request. Dismissing the case on the basis of an incomplete examination, without establishing work status by this method, is a ground for reversal.
Our Assessment: The decision makes clear that work status is not a fact dependent on the parties' allegations but a preliminary question concerning the application of the law. This determination, which requires technical knowledge, must be made by an expert witness. Its practical consequence is twofold: the claimant's attorney can rely on this precedent against a dismissal issued without an expert examination, while the defendant's attorney can, on the same grounds, object to work status being accepted on the basis of the judge's general legal knowledge.
Court of Cassation, General Assembly of Criminal Chambers, dated 09.10.2018, E. 2018/19398, K. 2018/413
Subject: The objective and subjective elements of qualifying as a work; the requirement of embodiment (fixation).
Summary of the Decision: For an intellectual product to be protected as a work, the objective element (falling within one of the types of work listed in the law) and the subjective element (bearing the individual character of its author) must both be present. What is protected is not the idea itself, but the manner of expression that acquires independent character by being fixed on a material medium. An intellectual effort that remains at the stage of mere thought and has not taken a form perceptible to the human senses cannot be protected as a work.
Our Assessment: This is a confirmation, in criminal proceedings, of the fundamental principle of intellectual property law — that what is protected is not the idea but the way in which the idea is expressed. In the software context, it means that no protection arises for the solution in the programmer's mind unless it takes a concrete form such as source code, object code or preparatory design material, and unless that form reflects personal creativity.
Court of Cassation, 11th Civil Chamber, dated 13.03.2007, E. 2006/934, K. 2007/4555
Subject: The meaning of individuality and the level of creativity required.
Summary of the Decision: For individuality (hususiyet) to exist in a work, the work must not be commonplace and must contain a certain level of creativity. A dispute requiring special and technical knowledge about the work cannot be resolved using the judge's legal knowledge.
Our Assessment: Individuality does not mean absolute novelty or uniqueness; it refers to the author's personal and creative contribution. In the case of software, the programmer's original approach to the problem, architectural choices and code organisation can constitute individuality; by contrast, routine operations that anyone would write in the same way and structures dictated by technical necessity cannot cross this threshold. The decision's second contribution is that it makes an expert examination mandatory for determining individuality as well.
Court of Cassation, 11th Civil Chamber, dated 23.12.2005, E. 2005/13440, K. 2005/12765
Subject: Individuality manifesting in the form of expression; the distinction between effort and creativity.
Summary of the Decision: Individuality shows itself in the work's form of expression and refers to its capacity to reflect its creator's intellectual effort. The recording and live broadcast of footage of a football match, although a skilled technical team activity, was not accepted as a work because it did not contain an original form of expression and did not reflect the creator's intellectual control.
Our Assessment: The decision clarifies the distinction between individuality and effort: not every intellectual or physical effort confers work status. It is the case-law expression of the fact that Turkish law has not adopted an approach that rewards mere effort. Applied to software, it means that output containing no creative choice (automatically generated code, mere data entry, standard configuration) cannot benefit from copyright protection, even if it involves intensive effort.
Court of Cassation, 11th Civil Chamber, dated 07.06.2007, E. 2006/929, K. 2007/8748
Subject: Absence of individuality in output that does not exceed the professional standard.
Summary of the Decision: For a petition written by a lawyer to be protected as a work, it must bear the individual character of its author. There is no individuality in a product that does not go beyond the level of an ordinary (routine) petition that could be written on the basis of accumulated knowledge, professional experience and legislation, and that shows no creativity in the presentation, arrangement and compilation of legal opinions.
Our Assessment: The decision shows that individuality requires a creative contribution that goes beyond standard and ordinary professional output. The parallel in software development practice is direct: the use of common design patterns, standard code templates and ordinary solutions required by industry practice does not by itself give rise to work status. In infringement cases, the defence that the similarity is concentrated in such routine elements can be supported by this precedent.
Court of Cassation, 11th Civil Chamber, dated 05.05.2015, E. 2013/15415, K. 2015/6399
Subject: Comparison of all elements of the program (data, processing, presentation, source code, interface) in a copying allegation.
Summary of the Decision: When investigating an allegation that software has been copied, the differences in the programs' data, processing and presentation, as well as in their source code and interfaces, must be assessed by a technical expert. If, as a result of this holistic examination, there is no similarity amounting to infringement in the parts reflecting the author's individuality, no infringement is deemed to have occurred.
Our Assessment: The decision makes clear that the protected elements are not limited to the source code; the program's structure, organisation and (to the extent that it is original) interface must also be included in the examination. This multi-layered approach is functionally parallel to the abstraction-filtration-comparison test shaped by the Computer Associates v. Altai decision in US case law.
Court of Cassation, 11th Civil Chamber, dated 31.05.2017, E. 2016/403, K. 2017/3216
Subject: Technical parameters in infringement examination: development environment, programming language, database structure, architecture, workflows.
Summary of the Decision: When assessing software copying allegations, the programs' development environment, programming language, database structure, architecture, workflows and functionalities must be examined comparatively. The fact that these elements are entirely different, and that the defendant's software was not built with code that could be obtained through reverse engineering, indicates that no copying has taken place.
Our Assessment: The decision establishes that an infringement examination cannot be superficial and offers what is effectively a checklist of the technical parameters an expert report must cover. Given that the same function can be achieved through different techniques, mere functional overlap does not create a presumption of copying. For the defence, it is the key precedent identifying the technical indicators by which an independent creation defence can be proved.
Court of Cassation, 11th Civil Chamber, dated 09.02.2016, E. 2015/3224, K. 2016/1184
Subject: No finding of infringement can be made without a code-level comparison.
Summary of the Decision: An examination of similarity between computer programs cannot be limited to the programs' superficial elements (similarity of functions and interface); a judgment issued without ordering a comparative technical examination of the source/object code was reversed.
Our Assessment: This is one of the most critical procedural precedents in software infringement cases: the most concrete evidence of copyright infringement is code similarity. Even if interfaces and functions are similar, this result may have been achieved through different forms of expression (different code). The decision is the procedural-law reflection of the substantive rule that functionality falls outside copyright protection (FSEK Art. 2/final paragraph; to the same effect, CJEU, SAS Institute v. World Programming, C-406/10). In cases where the source code is not accessible, obtaining an order from the court for delivery of the code and an inspection is, under this precedent, an essential step in preparing the case.
The decisions in this section determine who the owner of a computer program is and who may exercise the economic and moral rights in the program.
Court of Cassation, 11th Civil Chamber, dated 27.06.2006, E. 2005/5049, K. 2006/7575
Subject: The authority of the natural or legal person who brings the authors together to exercise the rights.
Summary of the Decision: In computer programs created with the contributions of more than one person and forming an inseparable whole, unless there is a contract or a condition of service to the contrary, the authority to exercise the economic rights in the work belongs, under FSEK Art. 10/4 and Art. 18/2, to the natural or legal person who brought the authors together. In the case at hand, it was accepted that the Ministry of Health, in this capacity, had the authority to exercise the economic rights in the program.
Our Assessment: This decision is an important practical application of FSEK Art. 10/4. It establishes that, in software projects created with the contributions of multiple employees, particularly those carried out for public institutions or large companies, the authority to exercise the rights lies with the institution that organised and commissioned the project. Although there is criticism in legal scholarship that this provision does not protect authors and is contrary to the principle of authorship, the Court of Cassation confirmed with this decision that the provision is applicable. The distinction the decision draws between the “exercise of rights” and “ownership of rights” should be emphasised.
Court of Cassation, 11th Civil Chamber, dated 04.06.2001, E. 2001/2687, K. 2001/5080
Subject: The employer's authority to exercise economic rights; moral rights remaining with the employee.
Summary of the Decision: Under FSEK Art. 18/2, the employer may exercise the economic rights in a work created by its employee in the course of performing their job. However, moral rights belong to the natural person who created the work (the employee); the Law regulates economic and moral rights separately, and moral rights exhaustively, and the right to claim non-pecuniary damages based on a violation of moral rights also belongs to the holder of the moral rights.
Our Assessment: This is the starting point of the settled line of case law that clarifies the distinction in Turkish law between the “author” and the “user of economic rights”. The employee continues to hold moral rights such as the right to be named and the right to prevent changes to the work; the employer's position is limited to the authority to exploit the work economically. This precedent is why it is indispensable for software companies to include consent clauses on the exercise of moral rights in their employment contracts.
Court of Cassation, 11th Civil Chamber, dated 15.06.2006, E. 2006/3490, K. 2006/6930
Subject: The employer's inability to claim non-pecuniary damages.
Summary of the Decision: An employer that has the authority to exercise economic rights under FSEK Art. 18/2 is not the author, and therefore cannot claim non-pecuniary damages on the basis of violations of moral rights, such as a violation of the right to make the work public.
Our Assessment: Together with the previous decision, this ruling draws a definitive line around the employer's authority over the work: software companies that are legal persons lack standing to sue in claims for non-pecuniary damages. In litigation strategy, allegations of moral rights violations must be brought in the name of the developers who are the natural-person authors.
Court of Cassation, General Assembly of Civil Chambers, dated 16.01.2020, E. 2019/474, K. 2020/26
Subject: Authorship in groups of companies and the application of FSEK Art. 18/2.
Summary of the Decision: The dispute concerned who has the authority to exercise the rights where, within a group of companies, an employee develops a computer program for a group company other than their direct employer. Although the decision made important findings on the contract for work and ownership of rights, the judgment was issued without examining the situation arising from the employment contract between the employee and their employer (the Art. 18/2 dimension).
Our Assessment: This decision has been criticised in legal scholarship as resting on an incomplete examination, because it did not assess the employee's relationship with their own employer and, in that context, to whom the authority to exercise the rights belongs. It did not draw a clear line on whether the other group company actually using the program could acquire authority under Art. 18/2. The practical lesson is clear: the Art. 18/2 presumption operates only in favour of the employer that is a party to the employment contract; for software developed within a group, inter-company assignment or licensing relationships must always be established in accordance with FSEK Art. 52 (through written contracts that list the rights individually).
Court of Cassation, 11th Civil Chamber, dated 28.03.2014, E. 2013/17255, K. 2014/6124
Subject: Whether reproduction infringement requires the program to be actually usable.
Summary of the Decision: Downloading (installing) a computer program onto a computer without permission may, as a rule, constitute infringement of the reproduction right. However, in the case at hand, given that the program could not be run or displayed for unknown technical reasons, it was held that no reproduction infringement had occurred, on the ground that no second copy enabling the work to be used and enjoyed like the original had been obtained.
Our Assessment: The decision introduces an important nuance to the rule in FSEK Art. 22/3 that even installing a program counts as reproduction: the Court of Cassation required that the potential to actually make use of the work arise before infringement could be found. Since installation technically creates a copy, this approach is open to debate; however, it opens a limited but real space for defences in unlicensed software cases. It should not be overlooked that the burden of proof (a technical finding that the program could not be run) lies with the defendant, and that this defence will not work if the program was found installed and running when the evidence was secured.
Court of Cassation, 11th Civil Chamber, dated 18.01.2000, E. 1999/8912, K. 2000/98
Subject: Copyright compensation, destruction and publication of the judgment for unauthorised copying and sale.
Summary of the Decision: Following the unauthorised copying of the claimant's computer programs and their sale to third parties, it was decided, under FSEK Art. 68/2 (as in force at the date of the decision), that an amount corresponding to the sale price plus 50% be collected together with statutory interest, that the unfair competition be prevented, that the unlawfully reproduced works and the means of reproduction be destroyed, and that the judgment be published.
Our Assessment: This is an exemplary decision that applies the full sanctions regime cumulatively — copyright compensation, unfair competition, destruction and publication — in a classic software piracy case. Framing the relief sought in the statement of claim to cover these heads directly determines the scope of the protection obtained. Note: the current text of FSEK Art. 68 allows a claim of up to three times the fee that could have been demanded had a contract been concluded, or of the market value, and the settled case law of the Court of Cassation is to award three times that amount.
Court of Cassation, 11th Civil Chamber, dated 30.06.2015, E. 2014/17376, K. 2015/8772
Subject: The exhaustion principle for OEM software and the freedom of second-hand sale.
Summary of the Decision: It was held that the exhaustion principle applies to the second-hand sale, separately from the computer, of OEM (Original Equipment Manufacturer) software sold together with a computer, and that a prohibition on transfer in the licence agreement cannot prevent such a sale.
Our Assessment: This is the most important precedent in the digital exhaustion debate in Turkish law and runs parallel to the Court of Justice of the European Union's UsedSoft v. Oracle (C-128/11, 2012) decision. The decision has two strategic consequences: (i) because FSEK Art. 23/2 is mandatory, the second-hand market cannot be shut off by contractual transfer prohibitions in licence models granting a perpetual right of use; (ii) the legal rationale for software producers moving to subscription/SaaS models has also found a counterpart in Turkish case law. When drafting a licence agreement, rather than relying on transfer prohibition clauses, the business model itself (a time-limited service subscription) should be structured to fall outside the scope of the exhaustion principle.
When the decisions compiled here are considered as a whole, two main conclusions stand out. First, in the practice of the Court of Cassation, software disputes have acquired a judicial discipline based on technical examination, centred on code and surrounded by procedural safeguards: work status and individuality are investigated ex officio and through expert witnesses; findings of infringement are based on a multi-layered comparison covering source code, architecture, database structure and workflows; and in the regime of ownership of rights, the distinction between the natural-person author and the legal-person user of rights is consistently upheld. Second, this body of case law makes it essential to frame software contracts (development, licensing, employee consent) and dispute strategies carefully from the outset. For decisions of the European Patent Office (EPO), see our separate article.
