The Plight Of The Legal Protection Of Computer Software And A Breakthrough

After a German scholar first raised the issue of legal protection of software in the middle of 1960s, as the development of professionalization and industrialization of software, the legal protection of software selected the mode of copyright law through constant trials and compromise and finally by the powerful enforcement of the United States. The inherent limits of copyright law and the functional nature of software render the patent mode of protection again on the stage of software protection after going through all the ups and downs. However, patent law, subject to the software's technical characteristics when applied to software, shows the unavoidable defects. This article first looks back on the history of software protection and comparatively analyzes the legal systems of software protection among different stages. And then, after discussing the plight of the software protection and system choice in order to break through it, the author suggests and explores the special legislation design of a two-layered protection on the basis of a deep analysis of the characteristics of software techniques.The first part is a general summary of the definition of computer software related concepts, the evolving history, classification, technical characteristics and the necessity of legal protection. It first discusses the definition of the computer software and expresses the comment of the author. Then it analyses the classification of software and suggests the author's own classification, discusses the technical characteristics of it. Finally, the author analyzes the necessity of legal protection of software.The second part explores the history of legal protection of software. The discussion goes in three periods, spontaneous protection period, copyright period and mixed protection period. This part analyses forming, course of evolving of copyright protection and the relative legislation of major states and international organization; then it explains the necessity of patent mode protection of software, the history of that bind of protection and the patent legislation of software of major states and international organizations.The third part focuses mainly on the merits and defects of the copyright mode, patent mode and mixed protection of software. Then it explains how do the three modes plunge into the dilemma because of the technical characteristics.