Study On Problems Of Software Intellectual Property Protection System

As the developing of the globalization and knowledge-economy of theworld, copyright protection is the most popular way which countries all overthe world undertake to give computer software intellectual protection. Chinaalso does in the same way. This article avoids traditional assession on thesoftware's protection methods, but try to base on the copyright protection,combining the globalizing of economy by the internet and China's entering intothe WTO ,and put more intention to the protection of copyright of computeralgorithm, the validity of reverse engineering, and the liability of the end userof the software who is using the piratic software.This paper is divided into three parts:The first part is whether the computer algorithm should be protected bythe intellectual law? Firstly, it's the concept of the computer algorithm, then,it's the intellectual protection problem for computer algorithm. The principleof the copyright law is to protect the way of expression but not the originality,so the computer algorithm can not be protected. But the computer algorithmis the high-tech industry, and filled with the intellectual fruits of the owner, ifthe computer algorithm cannot be protected rightly, there will be a huge beaton the owner's benefits. Should the computer algorithm be protected and howto be protected is the very problem. The algorithm is the foundation of thecomputer software from when it produced, which is regarded as the abstractthought rule, therefore was denied to have the attribute of the patent object.Countries such as the USA, Japan, thought algorithm itself can not be theobject of patent, however in the practicability;creation, and novelty,algorithm can own the patent. Most of the countries regard the natural law,the abstract principle, the mathematical formula, and the intelligent activityrule or method not to be awarded the patent.Secondly, from the angle of copyright, whether the reverse-engineeringis legal or not? Because in the reverse engineering, sometimes people need tolearn the procedure through the analysis from the source code, thereforeinvolves to makes the copy and the manufacture deduction work to thisprocedure goal code. Looking from the copyright protection angle, theduplication behavior and the deductive behavior both must beforehand obtainthe procedure copyright, otherwise constitute to the procedure copyrightpirate. This viewpoint favors the prohibition reverse engineering. On thecontrary, other people then thought that the reverse engineering involves theduplication behavior and the deductive behavior, which should belong to "thereasonable use", which the copyright law permits. This viewpoint favors thepermission for reverse engineering. The "reverse engineering" is kind ofhigh-tech artifice and having the neutrality value. At present, the internationaljoint pledge has not explicitly stipulated the reverse engineering question.There are mainly two kinds of patterns: One is taking the USA asrepresentative's judicial pattern;the other is European Union's legislationpattern. European Union used the way of enumerating to provide the reverseengineering, which limited the scope of the reverse engineering. While theUSA made the scope to be much broader by using the single case. Judge isnot even willing to deny the reasonable use principle in the commercialcharacter. The more is the unprotected elements, judges thought other peoplehave the natural right to use these elements through legitimate researchmethod, obtain, these factors. Certainly this requests that the judge shouldhave much more ability. But, Japan is as same as European Union. But in anyevent, under the certain condition reverse engineering is legal will becomethe world tendency. But whether the reverse engineering commits the rightinfringement should carries on the single analysis of the reverse engineeringaction and from the reverse engineering achievement angle. The former onemainly inspects if the reverse engineering person has been authorized. Thelatter one inspects whether the reverse engineering has "substantivesimilarity" with the original software constitution and has touched to theoriginal software. The premise of the valid reverse engineering is that thereverse engineering person is the legal user of the software. This condition isreflected in Atari document in USA as well as in European Union. Once theresource of the software is legitimate, the reverse engineering behavior iscertainly legitimate. Reverse engineering behavior itself is beyond the tort,whether the reverse engineering achievement infringes the copyright or not isoften using the "similar + contact" principle. The USA developed "only theroom technology" to avoid infringing upon the right, and planted good effectsin the practice. Looking from the practice of developed countries, such asUSA, European Union, Japan and so on we can find acknowledged thatsoftware reverse engineering is valid, which becomes kind of inevitable trend.This is especially important to our country whose software industry is juststarting. We need to create a good legal circumstance for encouragingcompetition and opening up the market. Therefore, our computer softwareprotection legislation must explicitly stipulate as soon as possible that thereverse engineering has the legal status, and what is the reasonable using.Certainly, the reverse engineering research results can not violate othersoftware's copyright. This is going to distinguish the reverse engineeringbehavior with the reverse engineering achievement. Therefore, comparedwith European Union's stipulation, it is an expansion in the valid reverseengineering applicable scope, which does not limit in obtains the softwarecompatible, and quite consistent with USA. The "reverse engineering" is kindof high-tech artifice and having the neutrality value. At present, theinternational joint pledge has not explicitly stipulated the reverse engineeringquestion. There are mainly two kinds of patterns: One is taking the USA asrepresentative's judicial pattern;the other is European Union's legislationpattern. European Union used the way of enumerating to provide the reverseengineering, which limited the scope of the reverse engineering. While theUSA made the scope to be much broader by using the single case. Judge isnot even willing to deny the reasonable use principle in the commercialcharacter. The more is the unprotected elements, judges thought other peoplehave the natural right to use these elements through legitimate researchmethod, obtain, these factors. Certainly this requests that the judge shouldhave much more ability. But, Japan is as same as European Union. But in anyevent, under the certain condition reverse engineering is legal will becomethe world tendency.The third part is about the responsibility of the software end-user whenhe or she uses the pirates. Firstly, the pirates are serious in our country. Thisproblem is proposed by the developer. The experts proposed three differentviewpoints regarding to this: undertaking the responsibility, not undertakingthe responsibility, as well as the middle of the road doctrine. The next is thedefinition of software end-user. The end user is the person who uses thecomputer software, including a natural person, a fictitious person, orunincorporated society. In the Computer Software Protection Act, thedefinition of owner of legal copy is basing on the ownership. But, this is notkind of specific provision and we should make some new and betterdefinition of end user instead of the old one. The owner who is in good faithis the person who does not know or does not have a reason to know that thesoftware he or she owns is the illegal one. And we should add the owner ingoodwill into the end user. This section is about the scope of the end userwho needs to afford the legal liability. The ideal of the owner when he or shegets the software is the key to judge whether the action is tort and whetherthere will be legal liability or not, further, this is also important for the dutyof proof. The end owner gets the pirate-software is provided in the activecopyright law, but it is not necessary to compare the law provision to themoral control. The copyright law protects the right of copying the software,instead of the using of the function of the software. The forth chapter is goingto compare the end user's different legal liabilities in different countries.When the end user use the software which is allowed by the owner, there arethree steps, the first step is that the law did not provide all the end users, asprovide in the TRIPS in the WTO. The second step is to divide the purpose isfor profit or not. The third step is about that the end users are include all theusers, from single person to family and companies, which is advocated bypart of people. The drafter of the new act ignored the second step, and theactual facts in China, forbid all the reasonable using of the computer software,besides the professional using. Firstly, the condition of copying for backup istoo strict. Secondly, the copy of backup is not allowed to be used by otherperson, but there is no specific definition for the other person. Finally, the actalso provides that when the owner lost the legal ownership of the software, heor she must destroy the backup copies. I think this is not really practical.China developed the protection of intellectual property during theglobalization of the economy in the world, so we should make sure thepinpoint of the fighting in the area of intellectual property. On 5th, August,2000, president Jiang Zhe Ming advocated that we should respect and protectthe intellectual property. On 16th, November, 2000, in the meeting of APEC,president Jiang Zhe Ming propounded two important favor principles. Thejustice office knows clearly about the essential of fighting in the internationalintellectual property. China is obviously a developing country, after enteringinto the WTO, China also need to learn from other countries, but this is notmeans only to enhance the level of protection of intellectual property. So it isnecessary to realize the promises when we entered the WTO. Because of theentering into the WTO, we need to amend the software protection act, whatChina has to do is only to endow the software copyright's owner with theright of rent of the software. About the end user, the new act which includesthe all the users into the scope of end user not only embodiments theprovision of the TRIPS which advocates to protect the software as the writtenwork, but also go beyond the protection level of other developed countriesand areas, such as Japan, Taiwan, and so on. The fifth is about the benefitsbalance when talking about the legal liability of the end user. The balance ofbenefits is an important principle in the protection of the intellectual property.In order to find the balance point, we should consider the actual circumstanceof our country, which means in one side we need to join the globalization,while in the other side we should try to do our best to protect and improveour domestic industries. At the same time when we consider the balance ofbenefits, we also need to consider the particularity of the software, which isobviously different from other written works. As the object of the intellectualproperty protection, the software has its own characteristic of law, whichincludes the characteristic of written work and function. The essencecharacteristic is about the function. In the modern time, the mode ofcopyright protection should accords with the principle of the copyright law.From the institution of copyright protection, the 'use' provided in thecopyright law is quite different from end user using the function of thesoftware. From the analyzing of the balance of the benefits in the softwareprotection, it is not property to provide that the end user, who uses thesoftware for personal study or research, committing the tort of copyright. Thesixth is about the proposal for the revision of the act which provides the legalliability of the end user. The essence of the dispute of the liability of the enduser is the contradiction between the double characteristic of the software andthe way of software protection which provided in the copyright law. Trying tohelp the China's software industry, we should consider the internationalcompetition and cooperation, and the level of the economy in our country.Firstly, 'we should realize that to the developing countries, the meaning ofthe institution of intellectual property protection is far beyond the intellectualprotection itself, and turning to be a way of economic competition.' Weshould ponder upon the economic and moral facts in our country and theinternational competition and cooperation when we modify the provision ofthe software protection act. Second, we should overcome the morelorientation when we determine the liability of the end user. There are at leastthree viewpoints, the first one is that the using of the pirate is a morelproblem which beyond the law provision;the second one is that the using ofthe pirate is a reasonable law providing problem;the final one thinks that it isnecessary to punish the using of the pirate. We should prescribe differentprinciples for different kinds of people and different kinds of using of thesoftware when we determine the liability of the end user. For example, theactions include buying, holding, and using the unauthorized software shouldnot be treaded as a pirate but a reasonable using;while governments andcooperation for profits use the unauthorized software should bear the blame;public benefit organizations, such as library, use the unauthorized softwarefor a tiny amount and in the scope of the business may not been treated ascommitting a tort.