TÜRKIYE Law and Practice Contributed by: Meltem Manav and Yeşim Kumova, KM Legal
6.6 Reverse Engineering Turkish law does not contain a specific regulation on reverse engineering. It is generally accepted that ana- lysing a product that has been placed on the market and obtaining the information embedded in it through reverse engineering is lawful. However, where the product has been obtained unlawfully, acquiring its trade secrets through reverse engineering would likely be considered an infringement of trade secrets and may constitute unfair competition where the relevant conditions are met. One of the main justifications for the lawfulness of reverse engineering is that, by placing a product on the open market, the manufacturer is deemed to have effectively made both the product and the information contained therein available to the public. If the protec- tion of such information is preferred, this is typically ensured through confidentiality-based contractual arrangements. Such contractual provisions may regulate ownership and provide for compensation in case the information is disclosed to third parties. While these arrangements are assessed under general legal principles, obliga- tions not to disclose confidential information and not to engage in reverse engineering are characterised as negative obligations. These obligations are generally of a continuing nature, requiring the parties to comply with them uninterruptedly for the agreed duration. Contractual clauses prohibiting reverse engineering are, in principle, valid and enforceable under Turkish law, provided that they do not contravene mandatory legal provisions. 7. Data, AI and Emerging IP Issues 7.1 Data Rights and Database Protection Turkish law recognises a sui generis database right under Additional Article 8 of the FSEK. Databases created through substantial investment, but lacking originality, are protected for 15 years from disclosure, granting exclusive rights to extract, reproduce, distrib- ute or communicate all or a substantial part. Where a database reflects the author’s own intellectual crea-
during the term of the employment relationship. To the extent necessary for the protection of the employer’s legitimate interests, the employee remains under a duty of confidentiality even after termination of the employment. In this context, the provision does not distinguish whether the information was created by the employee but rather imposes a general duty of confidentiality. As regards third parties (such as contractors or busi- ness partners), there is no overarching statutory rule. Instead, the ownership and transfer of know-how are typically governed by the terms of the relevant agree- ments. Depending on the contractual arrangements, one or both parties may hold rights over such know- how. Under the IPL, specific provisions exist determining ownership where designs or patents are created in the course of employment. 6.4 Protection Through Contract and Confidentiality In practice, the protection of know-how is generally ensured through contractual arrangements, particu- larly by incorporating provisions within non-disclosure agreements (NDAs) in commercial relationships. In addition, specific clauses addressing the protection of know-how are often included in the main agreements governing the commercial relationship. In employment contracts, provisions aimed at preventing the use of know-how are typically included both under confiden- tiality clauses and non-compete obligations. 6.5 Licensing and Assignment Under Turkish law, know-how can be assigned or licensed independently of patents or trade secrets, typically through contractual arrangements. There are no specific formal requirements for validity. However, such agreements are usually made in writing for evi- dentiary purposes. Notarisation or registration is not required. In practice, the contracts include clear provisions on scope, use and confidentiality, and may be subject to competition law considerations.
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