Computer Software Copyright Infringement

It is the basic tendency that, most countries protect computer software(hereinafter referred to as "software") by copyright law in the world.Compared with general works for appreciation and reading, the software hasunique characteristics. Software is a kind of practical and functional works.It usually has high value and is easily infringed with low cost. Thusinfringement of software is serious in judicial practice. However, softwarehas technical and legal nature so that it is difficult to recognize infringement.In infringement lawsuits of software, the most difficult is to make surethat the copyright exists and then it is infringed. In part one of this thesis, theauthor discusses the protective scope of software copyright in CopyrightLaw of The People's Republic of China. Micro-program and solidificationprocedure are protected, while data structure and algorithm are not. Thestructure, sequence and organization of program are similar to the "plot" ingeneral works. It depends whether it is protected or not and the criterion is"creativity". The user-interface in ordinary software (exclude game-software)is not protected by Copyright Law. While game-software is different: allsorts of fictional characters, scenes and circumstances can't be regarded as"operating methods". They should be protected as "expression" bycopyright law.Part two of this thesis focuses on the attribution of liability in thesoftware infringement. We should regard the fault-liability as fundamentalcriterion and apply fault-infer-liability in case of special provisions in law(such as, Article 52 of Copyright Law of the People's Republic of China andArticle 28 of Regulations on Computers Software Protection). While, fault-infer-liability is just a special form of fault-liability.Part three and part four of this thesis separately refer to asserting theinfringement of software copyright from two angles: one is software itself, the other is infringer. From works' angle, we can use the principle of"Substantial Similarity and Access" to assert the accused software comefrom the plaintiff's. The asserting methods of this principle have "Three stage test", "So-called method of contrasting", " Feeling softwarewholly", "Finding out the 'mark'" and "The test of third party ". Fromthe infringer's angle, this thesis discusses what kind of acts will infringecopyright owner's rights. Article 8 of Regulations on Computers SoftwareProtection provides eight rights of copyright owner: the right of divulgation, the right of developer-ship, the fight of alteration, the right of reproduction, the right of distribution, the right of rental, the right of communicationthrough information network and the right of translation. Correspondingwith these eight rights, this thesis divides the acts of infringement into eighttypes and discusses them separately. In addition, Article 24 of Regulationsprovides two acts of infiingement: "to knowing circumvent or sabotagetechnological measures used by the copyright owner for protecting thesoftware copyright" and "to knowing remove or alter any electronic fightsmanagement information attached to a copy of a piece of software". Thesetwo kinds are regarded as type 9 and type 10.In part five of this thesis, limitations of software copyright, includingFair use,Reverse engineering and The right of owners of lawful copies arediscussed to reach integrity.