Websites that are part of our daily lives consist of many elements such as webpages, the user interface, computer software, databases, and servers. Although there is no set of rules specifically applicable to them under Turkish law, their constituent elements and their content can be conferred legal protection if they meet the requirements of existing legislation. The question of whether websites are conferred additional legal protection separate from their constituent elements should be examined within the scope of the Law on Intellectual and Artistic Works 5846 (“LIAW”) and the Turkish Commercial Code 6102 (“TCC”).
To accept a creation of mind as a “Work” under Article 1(b) of the LIAW, there must be an intellectual product that is the outcome of a real person’s intellectual labour. Additionally, it must be fixed in a tangible medium, bear the characteristics and originality of its author, and be classified under one of the categories defined in the LIAW. Websites easily satisfy the originality, fixation, and intellectual labour criteria.[1] On the other hand, it is more complex to determine whether websites satisfy the criteria of classification under one of the other categories defined in the LIAW. This constitutes the main challenge of determining the scope of legal protection conferred to websites. Academic studies and judicial decisions contain varying views, arguing that websites could be protected as “works of fine arts”, “computer programs”, “compilations”, or “databases” which are the current categories of “Work” under the LIAW. The more dominant views argue that they should benefit from protection conferred to “graphic works”, a subcategory of “work of fine arts”, or to “databases”.
For instance, the 11th Civil Chamber of the Court of Cassation (“CoC”) stated in a 2018 dated decision that “…the images, graphs, colours, and layouts of the website where ads appear, briefly the overall look thereof, constitute a qualified whole and its design bears the characteristics of the author, which additionally gains the website in question the qualification of a “graphic work”.[2] In this respect, considering that websites constitute a whole consisting of images, graphs, layouts and colors contained therein, websites could be protected as “graphic work” if they bear the characteristics of the author and have an artistic value.
In its decision in 2018, the CoC upheld the decision of a Court of First Instance and concluded that websites should be categorized as databases. In a later 2021 dated decision with important explanations regarding websites, the Istanbul 2nd Civil Court of Intellectual and Industrial Rights stated that the dominant view under Turkish law is to protect websites as databases specifically noting that “it is generally accepted under Turkish law and comparative law that websites are in the form of “databases”.[3] In accordance with these decisions, websites could also benefit from the protection granted to databases pursuant to LIAW.
It may be inferred from the analysis of the academic studies and judicial decisions mentioned above that websites could enjoy copyright protection as graphic works or databases if the conditions set under the LIAW are met.
In addition to the options mentioned above, websites could also benefit from “unfair competition” protection pursuant to the TCC since they are a form of “work product”. Particularly, Article 54 of the TCC, which reads as “the provisions pertaining to unfair competition under this section aim to provide fair and undistorted competition in favour of all participants. Acts and commercial practices that impact the relations between competitors or between providers and customers or that breach the principle of good faith in other manners are unjust and unlawful.” could be relied upon for the protection of websites.
In this regard, pursuant to the cumulative protection principle that is widely accepted in Turkish doctrine, websites could be properly granted both copyright and unfair competition protection under the rules of the LIAW and the TCC.
Furthermore, those wishing to protect their websites and avoid infringing others’ rights should register original logos, icons, and other signs for their websites as trademarks, clearly regulate terms for assignment and licensing of intellectual property rights and post-contract relation of the parties, periodically monitor the market to check third party uses, conduct intellectual property right clearances so as not to remain silent against infringing activities, search for trade names and copyrights of others before inserting these to any part of the website, and make sure their activities remain within the scope of fair use when dealing with others’ intellectual property rights.