Our study on consequences of the use of unlicensed software under Turkish Law and legal remedies that a license owner may apply are presented here.
Introduction
Under Turkish law, unlicensed use of software means the unauthorized use of a software without complying with the terms of use set by the manufacturer or the right holder; this situation is generally realized by using the software without permission from the right holder, without purchasing the necessary licenses, without paying a fee or obtaining copies of the software.
Before legal proceedings are initiated, it is possible to send a notice to real and legal persons using unlicensed software, warning them that they must purchase a license and that legal proceedings will be initiated otherwise.
Evaluation
Continued unlicensed use despite the notice sent beforehand or the realization of this act without sending a notice beforehand, that is, the use of unlicensed software by any natural or legal person, has sanctions in 2 different areas in our law;
A) Criminal Sanction
Article 71/1 of the Law on Intellectual and Artistic Works stipulates that real persons or representatives of legal entities found to be using unlicensed software shall be sentenced to imprisonment from one year to five years or a judicial fine.
In the text of the Article, the situations deemed as “unlicensed software use” are listed in an extremely comprehensive manner. Accordingly, any natural or legal person who, without the written permission of the right holder, processes, represents, reproduces, modifies, distributes, transmits to the public by any means of signal, sound or image transmission, publishes unlicensed software, or offers for sale, sells, leases, lends or otherwise disseminates, purchases for commercial purposes, imports or exports, possesses or stores works that have been illegally processed or reproduced, except for personal use, will be deemed to have committed this offense.
Within the criminal investigation process that we have briefly explained above, there is also the possibility to request the prosecutor’s office to raid the relevant addresses and to issue a search/seizure warrant; this request may be accepted according to the current workload of the prosecutor’s office and the decision of the investigation prosecutor.
B) Legal Sanctions/Compensation Liability
Article 68 of the Law on Intellectual and Artistic Works regulates the consequences of the use of unlicensed software regarding liability for compensation. Accordingly, it is stipulated that the right holder may file a lawsuit for damages against real or legal persons who are found to use, process, reproduce or disseminate unlicensed software to the public, and may sue for damages in the amount of three times the amount that could have been requested if a contract had been concluded with them or the total market fair value to be determined in accordance with the provisions of the law.
In addition, Article 66 of the same law stipulates that the right holder may request the termination of unlicensed use through litigation; Articles 67 and 70 stipulate that right holders may also claim non-pecuniary damages in addition to the above-mentioned pecuniary damages.
Conclusion
Finally, it should be noted that; in practice, in order to determine the liability of unlicensed software users for compensation, the method of making a determination through the competent and authorized court before the lawsuit is frequently used. This is because, in the event that a lawsuit is initiated without an immediate determination regarding unlicensed use, the possibility that the other party, who is aware of the lawsuit, will cease the use and eliminate the evidence, and this situation may cause the legal processes to be initiated to remain inconclusive.
