Research On Protection Of Computer Software Intellectual Property

As intellectual property (IP) gained more and more attentions in recent years, legal protection of computer software intellectual property has become a hot topic within academia, since computer software is such a rapidly developing high-tech industry. Starting from legal protection of computer software, this thesis attempts to make certain investigations and discussions on protection of this new subject's intellectual property and on issues in software intellectual property theories and practices based on analysis of the properties of intellectual property. This thesis is divided into three parts.Through analysis of computer software intellectual property's specific properties and intellectual property's five basic characteristics reflected in computer software, Part I elaborated the legitimacy of computer software as an intellectual property object and demonstrated the unique properties of software intellectual property.Part II is on the difficulties faced by computer software intellectual property protection. Due to limitations of legal design itself, every mode of protection to software is flawed. Different values by different judicature bodies have often caused disagreements on legal cases on software in judicial practice. In this chapter, the author demonstrated the specific difficulty faced by each mode of protection to computer software by a particular legal case. The protection mode of copyright law only protects the expression of ideas, not the ideas themselves, while the original idea for software design is actually the soul of software. In judicial practice, the protection mode of patent often causes controversies during application of the doctrine of equivalents, which is established and developed gradually in the U.S. in form of precedents. The magnitude of restriction on the doctrine of equivalents is a major focus of debate and research by the field of patent study in the U.S. and internationally. Confidentiality of business's protection to computer software is also imperfect, which has flaws like fragility, susceptibility to monopoly, difficulty of protection, high cost of protection, etc. Consequently, not only theories on intellectual property themselves need improvement, but also institutional designs are in a rough situation.Compared with the traditional body of copyright of computer, software copyright in the text reflect the less personal interests. Computer software patents is a super-monopoly attribute of intellectual property rights.Compared with the traditional object of trade secrets, computer software's trade secrets have more human rights, which is a non-absolute trade secrets. Computer softwares have the basic characteristics of the object of intellectual property rights and property. Because of its strong technical characteristics, Computer softwares have unique properties, which the traditional intellectual property objects do not have. So computer software intellectual property objects have special attributes.Part III Due to stability requirement for laws and the difficulty in balancing interests of various stakeholders, it is not appropriate for China to legislate a specific "Computer Software Law" in the near future, and it is also not likely to get an international agreement on software signed. Organizing and integrating current legal resources to increase their efficiency should be the focus of our efforts.The author would like to propose the following suggestions on legal protection of computer software. First, strengthen the guidance system on software infringement cases. Second, the appropriate form of intellectual property protection. Thirdly, end-users'responsibilities for infringement need to be reasonably identified. Secondly, legality of the reverse engineering of software should be clarified. Fourth, duration period of software protection should be shortened. Last, but certainly not least, copyright law should provide legal protection to software revisers'legitimate rights.The TRIPS agreement is probably the most influential international treaty on intellectual property, which is the legal basis for intellectual property case adjudication in WTO's dispute resolution mechanism. The author found the following subjects in TRIPS need improvement. First, protection of obligees right by TRIPS is incomplete (for example, as one of the basic subjects in copyright, moral right is not protected by TRIPS), and hence related clauses need to be revised to enhance the protection to obligees'legitimate rights. Secondly, the TRIPS agreement needs to increase the intensity of its protection to citizens'rights of life, health, and adequate living standards.Final conclusions of this thesis were presented at the end. As an ancient right, intellectual property is currently facing many new issues, some of which originated from traditional theories themselves, while some are challenges from new subjects like computer software. As a fresh topic in the field of intellectual property study, legal protection of computer software is tightly related with development of software technology itself as well as the development condition of a sovereign state's software industry. Consequently, both of the development of software intellectual property theories and the design of software legal protection policies should be associated with particular background of software technology development and specific conditions of the software industry, so as to refine the theoretical system of software intellectual property and to provide better legal protection to the development of software industry.