A Study On The Integrated Model Of Computer Software Protection

Computer software is lawfully protected with the development of computer hardware and the commercialization of software. Use of computer software is closely related to the duplication of the software itself, hereof, which opens the channel to legal protection by means of copyright law. Most countries and TRIPS Agreement have adopted this model or recommendation driven by the United States. However, concerning the depth and the content of the protection, copyright model is undoubtedly powerless. Along with the growing dominance of computer software worldwide, software patent becomes an acceptable model of legal protection. As the patentability of computer software has never been blocked in international conventions, US and EU gradually liberalized the patentability of computer software in terms of the criteria of patent examination. However, in facing to the conflict and the coincidence of these two models, most countries are facing difficult choices. The key issue now for China is how to make the most appropriate choice without violating the relevant international conventions and treaties, in particular the TRIPS agreement. This is the aim of this dissertation not only to provide a clue or a reference to an effective legal system in terms of software protection, but also provide an way of implementation in terms of roadmap, policy, or strategy, along China’s specific development path of itself.By integrating related theories and practices, in addition to Abstract and Preface,this dissertation is consisted of four chapters as below,: The first chapter depicts the need and the construction of a computer software protection model. With the advent of the personal computer era, computer hardware is getting more and more affordable in terms of price and availability, besides, more and more computer software applications, more and more similar needs among users, in addition to many new features that request for computer software’s support, which makes a software providing convenience for many users in their life and work. Pirate has become an unavoidable and convenient alternative to some individuals for the reason of low or no cost to use software. To fight the illegal copy, US took the approach of copyright law protection as a start. US adopted the copyright protection model for dealing with the challenges posed by illegal copying. It was a result due to the consideration of the economical effectiveness and efficiency in the sense of legislation at that time. Taking into account of the platform built by international convention, the copyright model is capable of providing protection with cross-boundary, free program, low costs for computer software protection. Besides, it is relatively easy for US to achieve better results by use of copyright law model. In EU, due to member states have already taken copyright protection model of computer software provided in the international convention, EU’s Directive focused more on balancing the public interests, including the terms of protection, reversed engineering, and originality of works. In the motion of protection of computer software in Japan, it started with a specialized legislation of its own, but under America’s pressure, Japan changed its original intention but had to adopt the copyright protection of computer software in its legislation. Consequently, early computer software protection model were unified on copyright model, either through diplomacy or through internal negotiation. Its result is that copyright model is regarded as inherent model or axiom, and a complete re-justifying process will be needed for any other protection models to counter this rule, an extra level of difficulties to argumentation and reasoning for other protection models.The second chapter mainly reviews the copyright protection model of computer software. Copyright protection model is a masterpiece result from the techniques of legislation fiction. Computer software is an intellectual work in overall, and has some of the characteristics of literal works in terms of appearance and structure, which matches the basic requirements of copyright law. Because of readability, duplicability, and industrial value, copyright protection model of computer software was emerged as the best choice to incorporate literal works in many domestic legislation and international conventions. However, Computer software not only presents the features of literal works, but also posses the nature of practical applications. And the main aspects or ultimate goal is the intrinsic industrial value through applications. By incorporating computer software into the scope of the copyright law, the main and real attributes of computer software were ignored, and copyright protection were inevitably extended to non-artistic fields. It is not the pursuit of copyright law, and it is contrary to the basic sprit of copyright law. Machine-executable part of the software program is the main content and function, and this content is by no means readable to people who make us of it. So, right holders can get the corresponding economic interests by means of distributing his computer software in the market, but the users obtain only meaningless numeric string in this business transaction. It neither complies with the principle of knowledge availability in general, nor the principle of dichotomy pursued by copyright law. Besides, by applying copyright law to the protections computer software also creates disputes such as the choice of practicability and artistry, too wide a range for the right coverage, lengthy protection terms, imbalance between rights and obligations, and destruction of other protection models.The third chapter reviews the computer software patent protection model. Patent protection model of computer software is set to enhance the competitiveness of the software industiy In the early stage of computer software, it was based on a series of simple numerical algorithms, which lacks of compositionality and creativity. As the development of computer software industry is still in this nascent stage, the patent protection model of strong exclusiveness could not be justified. Later, as the software industry widens the scope of its application and its great value in industrial use and people’s daily life, the United States, as a leading country in software technology, wanted to use the patent protection model to consolidate and promote the development of the software industry. Since then, patent protection for computer software has started to develop gradually. On the level of practical application, a computer algorithm for instructing the machine’s operation is able to draw useful results, and act on external objects or internal objects resulting significant changes in performance, quality, and effect, so that these algorithms can be viewed as steps and segments to make a technical outcome. For a technical solution with algorithmic attributes of computer software, it should not impact its patentability in theory and/or in practice. This demonstrates the feasibility and validity of patent protection model. However, there are some vague and uncertain points when computer software is viewed as a technology, it is up to the patent policy maker to decide whether computer software is a technology or not. Contents presented by computer software are not necessarily in relation to technical arena, it requires the patent explanatory documents and other supporting documents to specify the technical problems to be solved and the technical effects generated by the technical solution. This increases the difficulty of examination due to lack of clear examination criteria for patent applications, as well as confusion between technical means achieving a technical effect and the technical effect itself. It is also a difficult judgment to the invention related to a computer software program using technical means whether in compliance with the laws of nature, instead of the artificial rules. In practice, it is difficult to grant patents to those technical solutions with loose combination between software and hardware. It becomes expedient to make a justification that technical effect is the same as usefulness, in the development of the patent protection model. However, there are also drawbacks in the patent protection model of computer software, such as not all computer software can be granted for patents, not all content related to computer software can be incorporated into the scope of patent examination criteria, the first use of computer software will affect the novelty judgment in patent examination. Tedious process of examination and authorization stipulated in patent regulation will affect the rationale of computer software protection model. The fourth chapter proposes for software protection model focusing on abovementioned problems. Based on the current situation in China, the overall level of industrial development of computer software is still in the stage as a follower. Therefore, it make more sense for the Chinese policy for the software industry to encourage knowledge and/or information sharing, and promote communication of the software-related fundamental knowledge base, and improve software knowhow accumulation. There are two fundamentals needed to be sustained when analyzing Computer software protected model, namely, the dichotomy of computer software constructing components, and the protection by the classification of computer software. Software-related documents meet the requirements of literal works, while the computer program may be more in line with the requirements of specific technical solutions. Source code of fundamental software should be encouraged to be opened to achieve the goal of sharing. As far as computer documentation is concerned, the related documentation of proprietary software can be protected as technology secrets, stipulated in Anti-Unfair Competition Law, however, the related object code of proprietary software can be reverse-engineered by users, if it meets conditions as:its direct purpose of reproducing a protected software is only for private purposes or for the sole purposes of evaluation, analysis, research and teaching; and software generated in the process of reverse-engineering cannot be for commercial use; meanwhile, the relevant documents of open software are literal works and are surely protected by the copyright law as usual. As far as the computer program is concerned, the grant of exclusive patent rights for proprietary program should be considered whether or not combined with general hardware; a creative invention patent application does not lose its novelty within six months before the date of filing; before granting a patent for the computer program, the solution features should be comprehensively examined and patent rights can be granted only if the requirements of novelty, inventiveness and practical applicability are met, except for the cases that rights are given up by its right holders. The design documents of open source software are literal works and are protected by copyright law. Any person is entitled to invalidate patents granted for the substantive part of open source software, or is entitled to revoke other protections in terms of technical secrets, or literal works. If an open source software infringes proprietary rights, rights holders have the right to notify the publisher to remove the infringing content within three months, otherwise it shall be liable for infringement damages. This provides a system designed in favor of open source software.By reviewing protection models for computer software, we found that:in terms of software legal protection in China, the present copyright protection model is excessive while the present patent protection model is insufficient. To this end, the legislator should take the position of separating the roles of design document and computer software; consequently, the computer software protection models can be reasonably designed and improved accordingly. To encourage information sharing and source code opening, a rationale legal mechanism should be set to guide the behavior of software developers and distributors, which, at the end of the day, will be very beneficial for the long term development of Chinese software industry.