A Legal Study On Coordinating Protection Of Computer Software

The fast development of software industry is inseparable from cultural background, human resources and other factors. However,besides the above mentioned factors, China’s relevant legal system also makes a contribution to the development of software industry.At present, Intellectual Properly Law related to software in China mainly focuses on copyright of the software, patent of the software and the provisions of trade secrets protection contained in the Anti tUnfair Competition Law. However, in practice, these laws fail to perform well as expected. Regulations for Computer Software Protection, as the lower-level law of Copyright Law, partly violates the legislative spirit of Copyright Law. Patent Examincation Guidelines clearly demonstrates it does not exclude the protection of computer software inventions, but whether pure computer software is protected by Patent Law cannot yet reach a conclusion. Recently, Western countries, for example, the United States, through a series of cases, have discussed the qualification of patent protection on computer software.As Professor Zheng Chengsi mentioned, computer software protection is not merely a jurisprudence issue that can be simplify classified by the basic principles of Copyright Law or Patent Law. It is a legal policy issue which serves for practical needs of computer software industry and balances the interests of public users and software developers on the basis of the characteristics of computer software. The author thinks that it is a more reasonable measure to protect computer software with special legislation.However, the formulate of law is not easy .Therefore, we can use the existing legal resources to protect the computer software.This paper, based on China’s national conditions and foreign advanced legislative experience, analyzes the characteristics of computer software and the factors that affect the coordinating protection of computer software, and aims to propose some suggestions for constructing and refining the legal system of China’s software industry.This paper consists of four parts. The first part introduces the concept of coordinating protection of computer software, and through the definition of computer software and legislation in various countries,determines the object of this study. The second part analyzes the factors that affect the legal coordinating protection of computer software in order to pave the way for the construction of our country ’ s computer software legal coordinating protection system. The third part is the analysis of the advantages and disadvantages of the existing computer software protection mode, especially the development and changes of the theory as well as the practices in European countries and the United States. And the last part, taking our country ’ s national conditions and the benefit balanced principle into consideration and making full use of the existing legal resources principle according to our country ’ s present situation of legislation, proposes several suggestions and consummation measures to refine the legal coordinating system of our country’ s computer software industry.