bundle-only software sold separately

Here is a real life conflict from Turkey:

The US software company X, sells a special version of its software to the OEMs. A retailer R, in the US, collects the software from the OEMs, and an importer M in Turkey, imports this bundle-only software directly from R. The software company X has also an authorized distributor D in Turkey. After issuing several hot display ads, the two local companies (D and M) are now filing lawsuits against each other.

The claim of D is based on art. 23/1 of the Turkish Law on Intellectual and Artistic Works: all of the economical rights of the works reproduced abroad and imported to the country belong to the owner of the work. Hence the rightowner X can forbid the distribution of the bundle-only versions within the territory of Turkey.

The claim of M is based on art. 23/2, which defines the exhaustion of the distribution right: Although X is the rightowner, it cannot further control the resale of the copies already sold, since it has exhausted the distribution right when selling the software to the OEMs.

Both parties claim also unfair competition. Since the software is of US origin, Turkish rules of conflict of laws also may involve a referral to or a direct application of the US law.

Turkey is signatory to the Berne Convention, 1979 Paris Text. Turkey has also completely implemented the European Software Directive 91/250/EEC. Since this implementation is very recent (June 1995) there is no court decision related to a similar case (There is several anti-piracy decisions that cannot help too much).

Since the US law may have applicability in one way or another to this conflict, US court decisions and the related articles of the UCC and the Copyright Act are needed, along with the good URLs for downloading them. Any comment also will be welcome.

Thanks in advance.

Riza Sekerci, Attorney-at-law
19 Mayis C 50 K 3 81480 Pendik Istanbul Turkey e-mail: sekerci[_at_]ibm.net Received on Mon Oct 07 1996 - 22:44:44 GMT