Although computer games have one of the highest economic values in the entertainment sector, they are not protected as separate works in Turkey. The works protected under 5846 numbered Turkish Law of Intellectual Property Rights (“FSEK”) are compilations and derivative works, scientific and literature works, musical works, work of arts and cinematographic works. Due to the fact that “numerous clauses” policy has been strictly performed in Turkish Copyright Law, it is very important to determine under which work computer games can be protected.
To be protected as a database, a work should be compiled and selected in a defined target and plan and its content must be accessible severally because a database’s target is giving information to the users. In that respect the main targets of both creations are completely different. In addition, contrary to the databases, systematic and methodical creation is not an obligation for the computer games. As regulated under the Article 6/11 of FSEK, originality must be found in compilation and selection for databases; whereas it must be found for computer games in expression of visuality, scenario and combination between story and visuality. Unlike databases, the content of the games is not independent and accessible severally.
For scientific and literature works, computer programs regulated under Article 2/1 of FSEK are the closest and controversial creations for the computer games. Although computer games are based on computer programs, the Turkish doctrine has not been accepting to protect computer games under scientific and literature works. The doctrine states that computer games consists not only from computer programs but also audiovisual components and a computer game express itself audio visually whereas computer program express itself only via codes. In that respect it is apparent computer games cannot be protected as a computer program.
In Addition, Article 3 of FSEK regulates musical works consisting of melodies. It is obvious that computer games do not express themselves via melodies or any musical way. There is no doctrine writing or court decision stating that computer games are protected as musical works but it is obvious that a musical work in computer game can be protected separately if it has originality by itself and created separately.
Article 4 of FSEK regulates work of arts. The main and obligatory component of these works is having esthetics value. Unlike computer games, the originality of the work of arts is via figure and color and computer games have no esthetics aim or static expression because games have audiovisual images to be played. In that respect, computer games cannot be protected as works of arts as whole but their some components having esthetic value can be protected under this type of work.
Article 5 of FSEK regulates the cinematographic works inclusively. The important specialty for these works is being displayable and having audiovisual images being related to each other. According to the Turkish doctrine originality is evaluated in the usage of cinematographic and/or shooting techniques, individually audiovisual expressions of the authors and the expression of the scenario and scenes’ compositions. It can be easily state that the originality can be found on both creations in technical and nontechnical features. Moreover the Turkish doctrine accepts that the notion “film” includes video games as well. Moreover, both computer games and cinematographic works are comprised of different types of communicative components. The concept or idea of the both creations is expressed via visuality as well. The only main difference between these creations can be interactivity because contrary to the cinematographic works, computer games are created to be played instead of being watched and the player affects the computer games by choosing the acts and options and gets back an effect from the computer game. However it can be accepted that the cinematographic works have passive interactivity because it gives its message via visuality and the watcher perceives and forms these works by himself or herself via his/her perceptions. Finally, 10.Council of State’s 1994 dated decision accepting that computer games can be immune from banderol system by evaluated under cinematographic works opens the way to accept the copyright protection of computer games as cinematographic works, although it does not directly related to the Copyright Law. For that reason it is obvious that cinematographic works are the closest creation for computer games to be protected under FSEK.
Associate / Taylan KILIÇ