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The Study On The Applicability Of Right Of Modiifcation To Third-party Softwares

Posted on:2015-11-05Degree:MasterType:Thesis
Country:ChinaCandidate:T C ZhouFull Text:PDF
GTID:2296330467968136Subject:Intellectual property law
Abstract/Summary:PDF Full Text Request
As the most famous inland instant messaging software, Tencent QQ has repeatedlyundergone software piracy incidents caused by softwares such as ‘Coral QQ’,‘Rainbow IP’and ‘bodyguard of QQ’. This phenomenon is by no chance accidental, the more critical reasonwhich lies behind it other than the cut-throat competition is users’ intense appeal for QQ tomodify and improve its functions.‘Coral QQ’,‘Rainbow IP’ and ‘bodyguard of QQ’,third-party softwares that cater to those needs haven’t got Tencent’s authorization andrecognition due to conflicts of benefits, thus triggering copyright infringements one afteranother.In2012, as a rare inland case which directly made a verdict of violating the right ofmodification,‘IP’ case was rated as one of the top10innovative cases in juridical protectionof intellectual property. While three flaws in the verdict render it unconvincing. Firstly, thecourt confuses the nature of right of modification in Regulations for the Protection ofComputer Software, which results to a weak foundation on which the affirmation andspeculation of the verdict are based on. Secondly, it is inappropriate to identify the acts ofmaking and uploading software ‘IP’ as an act of modification to QQ, because the courtneglected that the acts are in fact made by the users of QQ. Lastly, the dynamic and temporarymodification will not produce deductive work which satisfies fixed and permanent conditions.So the verdict of affirming ‘IP’ software’s violation is a misunderstanding of the nature ofsoftware’s right of modification and a misjudgment of the violation of right of deduction.The thesis first combs the mainstream standpoints on the identification of the nature ofright of modification to softwares and work out the character of software’s property rights bycontrast and inference, making preparation for the analysis of violation of right ofmodification. The thesis then analyzes the change of pattern in software’s modification andraises the case study of ‘Coral QQ’ and ‘Rainbow IP’. It is found that the great change of pattern in the two cases’ modification has been enough to shake the affirmation of violationfrom the root. Thirdly, the thesis quotes two cases of USA juridical practice in which twousers modifies their legally-used and copyright-protected softwares and analyzes the shift ofthe judge’s consideration in dealing with two similar cases. Lastly, the thesis points out thatunder the current copyright law, software users can modify the software feasibly and notconstituting violation to use third-party software in the process. The thesis also think themodification made by ‘IP’ to Tencent QQ will not produce fixed or permanent deductive work,thus not constituting violation of right of modification.The substantive matter which the ‘IP’ case reflects is the contradiction between rapiddevelopment of science and technology and legislation hysteresis quality. The author doesn’tadvocate that strong appeals for law revision and improvement burst out once the problem ofthis kind appears because the perfection of legal system will not be accomplished in an action.It is much less advocated to blame ‘IP’ for violation of right of modification. The right thing isto find other ways such as looking into those who destroy market competition and violateautonomy in management to regulate those ill-disposed privies on the premise of notaffirming ‘IP’ software’s violation.
Keywords/Search Tags:right of modification to softwares, third-party softwares, un-authorization, temporary modification, right of modification with feasibility
PDF Full Text Request
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