An Analysis On Computer Software Copyright Infringement Appraisal

With the development of the software industry, ways of software infringement have also varied from simple duplication to more subtle means of modification or even rewriting with a different programming language and releasing in one's own name. Computer software copyright infringement has become an important case for everyday juridical trial. Since software is both a functional and a creative work, it is necessary to consider the technical and legal traits of software. Software infringement appraisal, therefore, is very complicated.The first part of this paper introduces the concept of computer software and the process of software development. There are generally two ways of defining computer software:one, including computer programs and documents as parts of computer software, and the other, excluding documents from software and protecting them otherwise as works of writings. Based on the concept of computer software, this part discusses the process of software development. Both abstract and concrete, the process of designing and developing software mainly comprises requirement analysis, logical design, program coding and maintenance.Part two discusses the principle and methods of infringement appraisal. "Substantial similarity and access" is the guiding principle of hearing software infringement cases. Judging whether it forms a substantial similarity is an important step. Substantial similarity means that the work of the accused is similar to a certain extent to that of the accuser, which can only be explained as duplication. Since simple duplication has almost been replaced by modification of various degrees, substantial similarity must be determined essentially by whether the obligee's original program code has been duplicated. "Access" means that the plaintiff's proof can testify that the defendant has the opportunity to know, to see or to feel the copyright work. The target of access can be the source program or object program of the alleged infringed software. The proof of substantial similarity must be strictly required because of the relatively loose requirement of access cognizance. The three-step testing method--"Abstract, Filtrate and Compare," established by the United States judicial precedents, has been recognized within the law field the world over and has a wide range of application.Part three focuses on the analysis of program appraisal. This part discusses the relationship between source program and object program, and how to select the appraisal targets from the complicated materials. It also addresses respective functions of the object program and source program in the way of case studies. Usually, the appraisal of object code is unable to play independently as direct proof of infringement. Rather, it can only serve as an assistant, as compared with the source program which better reflects the creativity of the copyright owner. Considering the large variety of programming languages, this paper also distinguishes the appraisal of programs written in similar languages from those in different languages. Derivative work may be produced in the programs written by different programming languages.