Software Intellectual Property Rights Protection Analysis

As the infant industry, the software of computer has a great economical potential in the Internet Economic Era. So every country pays more attention to the legal protection of software in order to promote the development of software industry in their countries. At the same time, because of the internationalization of software industry, no countries can act blindly by divorcing itself from reality at the process of developing software. It requires the countries coordinate with each other in favor with the communication and collaboration of software technology in the process of software legal protection. After entering into the gate of WTO,there are many new challenges to the software intellectual property rights(IPRs) protection: our legal protection not only needs to satisfy the development of our software industry, but also adapts to the international communication in the developing of software industry. After we put in use the modified《Computer Software Protection Regulations》in 2002, The people generally think the level of software protection is a little high. Especially, the scope of reasonably usage is reduced at the aspect of the responsibility of the ultimate user. Therefore, the present emergency question that we need to resolve is how to improve the software IPRs protection legal system practically, not only to raise the protection level.Starting from the fundamental concept of software, this thesis compares with the different countries protective modes. It researches the software IPRs protective mode in our country on the basis of pursuing for the interest balance between software oblige and the public. During the discussion of the different software protective modes, we analyze the interest balance in the software IPRs protection and seek the balance point. At last, we put forward the thread of setting up our computer software IPRs protective mode and bring forth the legislative suggestion. The thesis is divided into four parts:The first one: the overview of software IPRs protection. Starting from the concept of computer software, we analyze its different legal properties from the general IPRs objects, and then discuss the fundamental principles of computer software IPRs protection. At last, following the rapid development of software industry in our country, the thesis stated the significance to enhance the software IPRs protection.The second one: software IPRs mode comparative analysis. After the statement of the three main protective modes, we analyzed the advantage of every mode and the difficulties they are facing now. As a complicated,systematic project, the exploiture of the software needs huge intellectual labor. The adjustment of the legal relationship in the processes of software exploiture,circulating and using is the main content of computer software legal protection. Nowadays, the singular IPRs legal protection system cannot protect all the three processes. Copyright Law can play an important part in preventing illegal copying and piracy, but can't stop illegal utilization. Patent Law can make an effect in unauthorized utilization. However, not everyone can satisfy Patent Law's requirements, because of software's comparative low creativity. Commercial Secret Law can protect some valuable information at the stage of software exploiture, except circulating and utilization. Therefore, Copyright Law can protect the software in using by giving the obligee essential copyright. Patent Law can give a stronger protection in the utilization. And Commercial Law is better for the software in exploiture. However, every protective mode only has effect at one aspect.The third one: The present software IPRs protection mode analysis in our country. The legislation in our country about software protection is a little late. The legal protection mode is founded at the basis of the competition between several different powers.《Computer Software Protection Regulation》, the main rules in the protection of software, is modified with China joining in WTO. In the analysis of《Computer Software Protection Regulation》modification, we researched the balance between software obligee and the public. From the discussion of the several questions in the software industry protection, we tried to find out the proper legal protection mode for our country.The last one: The suggestion to improve our software IPRs legal protection. The present copyright mode has already been very fine in our country. So we don't need to apply other new and ahead of period way---special legislation. We should collaborate with the present legal resource and coordinate the referring legal systems, and then set up a comprehensive legal protective system, in which Copyright Law is the main rules, and Patent Law,Commercial Secret Law are the secondary ones. All the kinds of rules coordinate with each other, and regulate the interest relationship in software exploiture,circulating,using together. Nonetheless, according to the reality of software industry legal protection, the thesis put forward several suggestions for application the protection law.