IP Assignment and Risks in Software Licensing Agreements in Turkey

A company commissions custom software for its own needs, pays the invoice, and relies on it for years. When the relationship breaks down, it discovers an uncomfortable truth: the intellectual property in that software still belongs to the developer. In Turkey, a large share of software disputes trace back to exactly this point — the failure to draw a clear line in the contract between a "licence" and an "assignment." Law No. 5846 on Intellectual and Artistic Works (FSEK) treats that distinction with strict rules, and a party that structures its contract carelessly may hold no rights at all, despite having paid in full.

Licence or Assignment? The Core Distinction under FSEK

Article 48 of FSEK defines two separate transactions concerning the economic rights in a work. The first is an assignment (devir): the author transfers economic rights — limited or unlimited in time, territory, and content — to another party, so the right passes into the transferee's estate. The second is a licence (ruhsat): the author retains ownership and grants only a "right of use" (Art. 48/2).

This difference is decisive in practice. A licensee may use the software only within the boundaries the contract permits; it cannot resell it or claim independent rights over it. Article 56 then splits the licence itself in two: a non-exclusive licence (the licensor may grant the same right to others) and an exclusive licence (reserved to a single person). The crucial rule: unless the law or the contract states otherwise, every licence is presumed non-exclusive. In other words, if "exclusivity" is not written expressly into the agreement, the licensor remains free to license the same software to your competitors.

Software Is a Protected Work under FSEK

Computer programs — in any form of expression, including their preparatory design material — are protected as literary and scientific works under Article 2/1 of FSEK. This covers both source code and object code. No registration is required; protection arises automatically upon creation of the work.

Under Article 8, the author is the person who created the work, and that person must be a natural person. Where an employed programmer creates a program in the course of their duties, the economic rights are exercised by the employer — unless the contract provides otherwise or the nature of the work implies otherwise (Art. 18/2). But this rule applies only to the employer–employee relationship; there is no automatic transfer when a project is entrusted to an independent developer or an external software house. This is where companies make their most costly mistake: they assume that bespoke software they ordered belongs to them simply because they paid for it. Without an explicit assignment clause, the rights stay with the developer.

An Assignment Requires Written Form

Here lies the most frequently overlooked rule in Turkish law. Under Article 52 of FSEK, contracts and dispositions concerning economic rights must be in writing, and the rights that are their subject must be specified individually. This is not merely an evidentiary rule but a condition of validity: an assignment clause that is not in writing, or that fails to enumerate which rights (reproduction, distribution, adaptation, communication) are being transferred, is invalid. A blanket phrase such as "all rights are hereby assigned" is often deemed insufficient.

Two further points matter. First, under Article 48/3, any assignment relating to a work not yet created or not yet completed is void; indeed, the 11th Civil Chamber of the Court of Cassation rejected a rights claim based on a software design that had not yet become an actual computer program, on the ground that such dispositions are invalid under Article 48 (E. 2015/4858, K. 2015/13274, 09.12.2015). Second, any onward assignment of an acquired right to a third party requires the author's written consent under Article 49.

What the Contract Must Address Expressly

A functional software licence or development agreement should, at a minimum, address the following clearly:

• Scope of use: how many users, which locations, for what purpose, and for what term the licence is granted.
• Exclusivity: is the licence non-exclusive or exclusive? If exclusivity is intended, Article 56 requires it to be stated expressly.
• Ownership of bespoke software: whether the economic rights in custom-developed modules are assigned to the client, specified right by right in compliance with Article 52.
• Access to source code: whether the source code will be delivered, or secured through an escrow arrangement.
• Modification and sublicensing: whether the client may modify, adapt, and sublicense to third parties. Under Article 38, a person who lawfully acquires the program cannot be contractually barred from loading it, running it, correcting errors, and making one backup copy.
• Warranty and non-infringement: an undertaking that the software does not infringe third-party rights. For infringement, Article 68 allows compensation of up to three times the licence fee.

SaaS and Due Diligence for Foreign Companies

In cloud-based (SaaS) models, no copy of the software is delivered at all; the customer merely accesses a service. Here the real issues are not IP assignment but data ownership, portability and retrieval on termination, service-level commitments, and compliance with applicable data-protection law. Foreign companies face an added layer: governing-law and jurisdiction or arbitration clauses. A foreign company licensing software to or from a Turkish counterpart should, before signing, verify the developer's title, the prior chain of assignments, and the licence terms of any open-source components — and ensure that the assignment and exclusivity clauses meet the validity conditions of Turkish law.

Frequently Asked Questions

I paid for the software — doesn't ownership pass to me automatically? No. Payment alone does not transfer intellectual property. For software built by an independent developer, the rights remain with the developer unless there is a written assignment clause compliant with Article 52 of FSEK.

What happens if I don't write "exclusive licence" in the contract? Under Article 56, unless stated otherwise, a licence is presumed non-exclusive. The licensor may then license the same software to others, including your competitors.

Can an assignment be made orally or by e-mail? For an assignment of economic rights, Article 52 requires written form as a condition of validity and demands that the transferred rights be listed individually. An arrangement lacking these elements may be treated as invalid.

Does a SaaS subscription require an IP assignment? Usually not; in SaaS the customer receives access, not ownership. Here the priorities are data ownership, portability, service levels, and data-protection compliance clauses.

How Mona Hukuk Can Help

Software contracts are an area of Turkish law where a small difference in wording produces large ownership consequences. Mona Hukuk advises foreign investors and domestic companies operating in Antalya on software licensing, bespoke development agreements, IP assignments, and infringement litigation; we review contracts for FSEK compliance and draft assignment and exclusivity clauses in our clients' favour.

Contact us at contact@monahukuk.com or call +90 (242) 606 14 32 for a consultation in Antalya.