Reflection Of Intellectual Property Protection Of Computer Software And Beyond

Currently, the computer has already changed the life of people's society thoroughly. The software technique is a very important part of the computer technique. The legal protection of software bases on the copyright system which is now attacked sharply. The personality characters of copyright protection and patent protection for software are very fresh and clear, its merit and shortcoming is very obvious at the same time. The patent protection is not the best choice for software while it is the best one of present stage. It is predicted that the patentability of software is coming sooner or later. It is exactly the basic point of view of this thesis and the following analysis and argument is launched from it.Most of the developed countries, including U.S. and all the European ones, pay lots of attention to the protection of software. As the international treaties have been appealing to all the parties of these treaties to give copyright protection to software at lowest. Trips, the most important international intellectual property treaty which is under the WTO frame, defines software as one type of the traditional literal work. The European Union has issued a series of copyright directives and built up an efficient copyright protection mode of software. As one of the most important developing countries, China is now confronted with the question: How to protect the software and what should Chinese government do to protect the intellectual property of the author of the software?The thesis begins with a brief preface and has more than 170,000 words. The full text is divided into three parts and composed by eight chapters.The keyword of the first part is review mainly and this part emphasizes on the copyright protection toward the software.At the very beginning, the writer recalls the whole history of software legislation. The legislation of software was left behind that of hardware until the software is independent from the hardware. As the hardware is protected by the patent law, the U.S. Congress set up a panel named CONTU whose permission was to find an appropriate way to protect software. Finally, U.S. chose the copyright system for software as CONTU suggest in its report. After that almost all the countries and international organizations make the same choice.The thesis then discusses the copyrightability of software and pays attention to the challenge the copyright system is facing. Software has four forms: algorithm, source code, object code and executable program. The code of software is written in program langue and it has no difference with the common work. The existence appearance of the software source code is actually similar to the writing work, and this point justifies the copyrightability of software. But the inside balance of copyright system is facing some new problems when software becomes a type of work. Software copyright has a distinct shortcoming that it can not protect software design which is the real soul of software. As a result the power should be limited which is given by the copyright. For the lawsuit on various forms of software, it cant and should not control the copyright out of code. The copyright should only regulate the source code form and object code form of software, anything other than those two forms is beyond its capacity.This thesis compares all the protection modes adopted by different countries. The author considers copyright protection is not the best way to protect software because the copyright law can not forbid people to use the idea expressed in the software. But copyright protection seems to be the easiest way to protect software because it is accepted by almost all the countries. So the author suggests the Chinese government should strengthen its effort to build up a copyright protection system of software.The keyword of the second part is improve and this part is supposed to discuss how to make software copyright become better.The author propose the Chinese government to pay more attention to the copyright controlling technology after make a full research of the rules of U.S. and EU directives. Such technology could help copyright holders of software to protect their software easily. But there are some problems, too. The author appeals to the legislative to modify Chinese legislation of software copyright to bind some obligations to the right holders, as providing ways to remove these technologies to give facilities to the society to fair-use the software. When the protection period expires, the copyright holders of software should register the removing technology to official institutions to make people use the software freely. In the fourth chapter of this thesis, the author focuses on the protection period of software copyright. The U.S. parliaments extend the copyright period again and again. EU countries also set a longer period than required by international intellectual property treaty. The author argues software is different from other types of works and the protection period should be much shorter. Referring to the integrate circuit protection, China should set a protection period as about 10 years.As software reverse-engineering is concerned, common works don't have the problem. Traditional copyright law doesn't protect the thought that contained in the work. The protection is limited to the form of work. The common work has only one form, but software has 4 forms which could be transformed from one into another. Software reverse-engineering could be used to study the technique inside software. The thesis introduced the lawmaking circumstances of the U.S. and Europe, and analyzed the shortage of current lawmaking in China. The author considers that reverse-engineering is a neutral technical way to use software which should be permitted by the law. Legal customers all have right to use reverse-engineering to make non-commercial research. It is illegal that someone tries to use the result of reverse-engineering to design the same software.The software register system seems to be useful but in fact not. The register procedure is so simple that soft-ware designer could register the software by submitting only part of his program, no matter whether it is useful or not. Although it may help to keep the secret of the sol, care, the uselessness of software register system in practice makes the system itself embarrassing.The keyword of the last part of this thesis is beyond and among this part the author discusses the patentability of software.Some countries try to give patent right to software. Most countries, including China, follow the traditional patent theory that the patent right should not be licensed to pure idea. So as software is concerned, patent system should not be used to protect software. But after his argumentation, the author points out that the algorithm is not equivalent to mathematic formula. Software is a technical design which has specific technical function and could solve specific technical problem and has utility in industry. But even if software could be taken as a patent-able subject, most software is hard to fulfill the demands of patent system.At the end of the first part of this thesis, the author calls for a new mode to give comprehensive and effective protection to software. The author's vital point of view is China should choose a proper protection standard of the software copyright according to the situation of China. It is still a long way for China to enhance its intellectual property protection. We should remember that Rome is not built up in one day. China should not improve its protection of software too rapidly.