Research Of Copyright Law Protection Of Computer Software In China

As the development of computer software, the legal protection of it has gradually caught attention from people. Based on the characteristics of computer software and the status quo of the development of the computer software industry in China, this paper tried to select a legal protection model for software which is suitable for China and determine an appropriate standard of protection. Starting from the relationship between the legal protection of computer software and the development of software industry, it made a selection for a legal protection model for software in China by means of comparison and analysis. In addition, based on the encouragement of manufacturing creativity and the promotion of its circulation and utilization, it indicated problems of the existing copyright law protection of computer software in China from the angle of balance of interest between the right owner and the public and made legislation suggestion thereupon. The whole text is divided into 5 chapters. Chapter One is about the general introduction of the intellectual property right protection of computer software. Based on the definition and characteristics of computer software, the intellectual property right nature of computer software was analyzed herein. The specific nature of intellectual property right has determined the diversity of the protection models of computer software. The copyright law protection model dominates the protection of computer software. But the adoption of patent law protection model is growing more and more popular among countries whose software industry is quite developed. In Chapter Two, it analyzed the rationality of copyright protection system of computer software, especially the rationality of protection of the right owners'interest from the angle of labor theory and the encouragement theory of property right. Meanwhile, problems on the explanation to the rationality with the two theories were indicated herein with further illustration. In Chapter Three, it discussed the selection of copyright law model for the protection of computer software in China. The level of intellectual property protection of computer software in a country shall be correspondent with the developing level of its software industry. With the comparison and analysis of three main intellectual property right model of computer software protection and the state quo of the development of computer software industry in China, it was concluded that the copyright law model shall be the most suitable way of computer software protection. Seen from the legislation process, however, China accepted the copyright law model of computer software protection in a negative way. And the protection standard of the right owner is growing higher and higher upon the external pressure. In Chapter Four, the existing problems of the copyright law protection of computer software were analyzed based on the principle of balance of interest. Judging from the legislation process, some developed countries and interest groups has exerted impact on the legislation in China; judging from the existing legislation, the stipulation of the requirements for determination of legal liability borne by ultimate users are not suitable for the national conditions. The applicable range of fair use is too narrow. The protection term is too long and the regulation involving anti-compiling is in absent; judging from the reality, the overflow of pirated software has exerted negative influence on the development of software industry. Chapter Five was about the improvement of copyright law protection of computer software. It is held that the relationship between the compliance of the international customs and the protection of the benefit of Chinese software industry and that between the encouragement of the creativity of software and the promotion of its circulation and utilization shall be dealt with appropriately, which shall be theprinciples to uphold and improve the copyright law protection of computer software. It was suggested that the "fiction theory"be adopted to the issued of infringement liability of software ultimate user and the requirement of "knowingly"be added; the non-business use for education and scientific research and compiling be included in the application of "fair use"; the protection term of copyright of software be amended as 25 years. Finally, some immature suggestion was made to the solution of pirated software in China.