Package software license agreements

Rapidly developing computer and software technologies are rapidly changing our habits. Most importantly, the great successes of commercial ideas relying on computer technologies at a global level and the very large share of computer technologies in the world economy increasingly make commercial organizations invest in software technologies. These developments in the field of technology also cause changes in the habits of users in their daily lives. While about fifteen years ago, people had to purchase compact discs or download digital data directly to their music players to listen to music, today, users can instantly access music, video etc. content they want through digital platforms, without having to buy any compact disk or even save any digital data into any data storing device. In practice, in order for users to listen to music from a digital music platform, watch videos, download electronic books, use cloud services or download an application to their smartphone, they must first conclude an agreement that is drawn up beforehand in a standard format. These agreements are executed under names such as a "subscription agreement", "end user license agreement", or "license agreement". In the same way, commercial enterprises that want to use software for commercial purposes often conclude software license agreements, which have different names and are prepared in a standard format. These developments in the field of technology have even started to change the way agreements are made. Nowadays, software license agreements are mostly presented to licensees as prepared in advance by the licensor, and the licensee accepts this agreement by simply clicking on a button that appears on the screen. Although it often occurs in our daily lives, package software license agreements have not been studied intensively in Turkish legal doctrine. In this context, we have chosen "Package Software License Agreements" as the subject of our thesis. There are many different types of software license agreements according to their subject and purpose. Each type of software license agreement used in practice has a substance deep enough to consist the subject of different theses. We have chosen package software license agreements as the subject of study due to the fact that they are the most commonly used software license agreements in practice. Although the subject of our thesis is only package software license agreements, information about different types of software license agreements will also be included in some sections of the thesis. Products that arise as a result of the intelligence, creativity and thinking of people are called "intellectual products". Intellectual products are also called "intangible goods" as they do not meet the condition of being material that concepts such as "item" and "property" in the classical sense meet. Software is protected as a work of science and literature within the scope of Law on Intellectual and Industrial Works (LIIW) and software does not have a physical existence. Therefore, software should be qualified as an "intangible good". Over intangible goods, there are certain rights that are of the nature of "absolute rights". These rights are called "intellectual property rights". Under the principle of "authorship" as accepted in LIIW, authorship is an objective legal status that cannot be transferred. The rights arising from authorship are basically divided into financial and moral rights. It is possible for financial rights to be the subject of agreements and for the authority to use these rights or for these rights themselves to be transferred completely. However, the transfer of moral rights is not considered possible in terms of LIIW. The financial rights of the author are absolute rights that allow him to benefit economically from the work. Due to the absolute nature of their financial rights, the period and manner in which third parties will benefit from the work are completely determined by the author. The right to reproduce the work is the oldest and most widely used financial right that ensures that the author benefits economically from the work. According to Article 22/1 of LIIW, the right to reproduce the original or duplicated copies of a work in whole or in part, directly or indirectly, temporarily or permanently by any method is a right exclusively belonging to the author. Due to the absolute nature of the right to reproduce, a reproduction made by third parties without the permission of the author would violate an absolute right of the author. The author can transfer the right to reproduce, as well as grant the right to reproduce to third parties. In order for the classical act of reproduction to be realized, a reproduction of a work that will allow its use instead of the original must be made. The legislator has introduced a provision in Art. 22/3 of LIIW that is different than the classical concept of reproduction, due to the different nature of software compared to other types of works. In this provision, it is stipulated that the right to reproduce also covers the acts of installing, displaying, running, transmitting and storing a computer program to the extent that it requires temporary reproduction of the computer program. In other words, unlike the classical right to reproduce, not only the production of a second copy of the program, but also the acts of using and running the software are included in the scope of the right to reproduce. This feature of software in terms of the right to reproduce, mainly constitutes the license element in package software license agreements. All agreements related to software and computer technology, in general, are called "software agreements". Software license agreements constitute a sub-type of software agreements. A common feature of software license agreements is that they are agreements that contain the purpose of making software available to the licensee. The main difference between package software license agreements from other software license agreements is that the software is presented to users in object code format without any changes. Agreements are studied separately as "nominate agreements" and "innominate agreements" in terms of the provisions to which they will be subject. Innominate agreements are agreements whose essential elements are not set forth by law. Package software license agreements are not agreements defined by law whose elements are also determined by law, but are of the nature of "hybrid agreements" which are a subtype of innominate agreements. Package software agreements can be defined as agreements in which the licensor delivers a reproduced copy of the package software to the licensee for temporary or perpetual use and the licensor or the law itself grants the licensee the right to reproduce and operate over this delivered copy within certain limits, and the licensee pays a license fee, for one-time or periodically, to the licensor in return. In the doctrine, hybrid agreements are classified differently by taking into account the obligations they contain and the relations of exchange between these obligations. According to the general trend in the doctrine, hybrid agreements are examined in three groups: double-type hybrid agreements, combined hybrid agreements, and additive hybrid agreements. In our opinion, perpetual package software license agreements are agreements in which the obligations regarding sales agreements and license agreements are brought together, and temporary package software license agreements are agreements in which the obligations regarding lease agreements and license agreements are brought together, in a way not stipulated by law. The fact that it is mandatory, in order for any software to be used, to exercise the power to reproduce on a copy of the software, constitutes the license element in package software license agreements. The transmission of a copy of the software to the licensee for perpetual use of the software parallels the obligation to transfer the subject of the sales agreement to the buyer in sales agreements. Similarly, the delivery of a copy of the software to the licensee for a certain period of time in package software license agreements parallels the obligation to deliver the subject of the lease in a convenient manner for use in the lease agreements. There are many theories in the doctrine regarding the determination of the provisions to be applied to hybrid agreements and the way they are to be applied. The theory that is predominately accepted among these theories is "legal syllogism". According to legal syllogism, the rules regarding the types of agreements set forth in law should not be applied directly to hybrid agreements, but should be applied by syllogism, based on the purposes and interests of the parties. Under legal syllogism, in disputes arising from package software license agreements, mandatory provisions, provisions of the agreement, secondary provisions among the general provisions of the Turkish Code of Obligations (TCO), secondary provisions among the special provisions of TCO, in case any applicable provision exists, rules of customary law and the law created by the judge will be applied, in this order. However, during the application of the above, it is necessary to make a separate evaluation according to each case at hand and to take into account the interests of the parties. In practice, package software license agreements are usually concluded by the method named "click-wrap". This method can be defined as the method of concluding an agreement by clicking on icons containing statements of approval such as "I agree", "Okay" etc. appearing on the computer screen of the user along with a message, presented for the conclusion of the agreement. In particular, the issue of whether the requirement of form set forth in Art. 52 of LIIW will be applied or not for agreements concluded as click-wrap in practice. In our opinion, Art. 52 of LIIW which imposes a requirement of form for license agreements should not be applied for package software license agreements. The legislator grants the "power to reproduce" and "power to operate" to those who have acquired the software by legal means in Art. 38 et seq. of LIIW, due to the special feature of the right to reproduce in terms of software. No definition has been made in the law regarding the concept of a person who acquires the software by legal means. However, the person who acquires the software by legal means is defined in the doctrine as the person who acquires the software under an agreement such as a license agreement, copyright transfer agreement, lease agreement, or gift agreement, or as the successors of such a person. The powers granted to the persons who acquire the software by legal means, in other words, the licensee, in Art. 38 et seq. of LIIW, are powers that cannot be eliminated by an agreement. These powers constitute the minimum of the powers acquired by the licensee under the agreement. If the software subject to the package software license agreement is defective, the provisions regarding defects in relation to sales and lease agreements set forth in TCO should be applied to this agreement by syllogism, depending on whether this agreement is concluded as temporary or perpetual. In cases where the licensee cannot use the software due to an absolute right of a third party over the software, the application of the provisions on the obligation to guarantee the existence of the right set forth in LIIW to the agreement would be a more appropriate solution for the protection of the licensee. We think that, in package software license agreements, the general provisions of TCO should be applied instead of the special provisions of TCO regarding sales and lease agreements in case of violations of obligations such as default and impossibility of performance. In terms of termination of the agreement, the cases of termination of the obligation set forth in Art. 131 et seq. of TCO are applicable for package software license agreements. However, there are other cases of termination that are controversial about whether to apply to package software license agreements. In particular, Art. 58 of LIIW, which grants the right of withdrawal to the author if the person who acquires the financial right or the right to use it does not use the financial right is one of them. In our opinion, the purpose of adoption of Art. 58 of LIIW is the idea that the licensee's failure to use the work will affect the moral right of the author. However, since no such situation may arise in package software license agreements, we are of the opinion that the licensor has no right of withdrawal under Art. 58 of LIIW. After the completion of our study, the change and development in computer and software technologies will continue at full speed. In parallel with this change and development, we have no doubts that the content of software agreements and the way they are concluded will also change. Our subject has been examined taking into account the current technical and technological level of knowledge and a number of conclusions have been reached as such. We hope that our study will contribute to the Turkish legal doctrine.