The Discussion Of The Nature Of Software Reverse Engineering And Its Effect On The Effection Of Contract

The first chapter of this The article has spreaded out exposition from three aspects.First of all,by referring to the provisions of the judicial interpretation of China's anti-unfair competition law and the views of scholars at home and abroad,this paper clarifies the concept of reverse engineering of computer software.Secondly,it explores the significance of computer software reverse engineering from both of the legal level and economic level to explain the meaning of its protecting of the public interest.Finally,it discusses the controversies around computer software reverse engineering.There are two main problems.One is the legality of reverse engineering of computer software.Some people think that reverse engineering of computer software is copyright infringement,but some people think it is fair use.The second question is the effectiveness of the contractual prohibition of the software reverse engineering.Some people think that that contract clause is valid according to the principle of autonomy of will,but some people think that that clause violates the social public policy and legal mandatory provisions and that is therefore invalid.The second chapter of this paper mainly discusses the legal nature and legal scope of reverse engineering of computer software.The analysis of this problem starts from both domestic and foreign perspectives.The discussion from domestic perspective is mainly based on the rules of trade secrets and the Copyright Law andthe Computer Software Protection Regulation.The judicial interpretation of China's anti-unfair competition law clearly lists reverse engineering as exception to trade secret protection.The provisions of the Copyright Law and the Computer Software Protection Regulations are not clear at this question.By using the three-step test of rights restriction and exception,this paper finally determines the possibility of legality of computer software reverse engineering,especially when reverse engineering of computer software is out of commercial purposes,and the prerequisites and legal scopes of legal software reverse engineering.The third chapter of this paper mainly discusses the effectiveness of the contractual prohibition of the software reverse engineering.The discussion refines from three aspects.The first is the aspect of the contract law,although according to the general requirements of validity of the contract law,the contractual prohibition of computer software reverse engineering is valid.However,if it meets the special effectiveness requirements stipulated in the contract law,the clause is still invalid or can be revoked from the perspective of contract law.The related requirements mainly include whether it is contrary to social public policies and whether it violates the mandatory provisions of laws and regulations.However,the further judgment needs to be made in conjunction with the provisions of the Copyright Law and the rules of trade secrets.The second aspect is the perspective of copyright law,which focuses on the analysis of the nature of fair use and whether fair use can be excluded by contract.Through the analysis of foreign cases and laws,the paper concludes that fair use cannot be excluded by the parties,so if the reverse engineering of computer software constitutes fair use,it cannot be excluded by the contract.The third aspect is the perspective of trade secret rules.The focus is whether the infringement defense of computer software reverse engineering can be excluded.Through comparative study of relevant foreign legislation and judicial practice,the paper concludes that it is not the negligence of our legislators that China's relevant judicial interpretation does not stipulate that the parties have the freedom to exclude the defense.That is,in terms of trade secret rules,the parties cannot agree to exclude computer software reverseengineering.The last chapter mainly gives some proposals about the improvement of relevant laws in China based on the previous discussion.The first suggestion is that the Anti-Unfair Competition Law should formally incorporate the reverse engineering defense.The Copyright Law and the Computer Software Protection Regulations should clarify the possibility of the legality of reverse engineering of computer software,and coordinate the two departments of law to avoid conflicts.The second suggestion is to learn from the model of the EU and the United States to clarify the conditions that must be met for the legal reverse engineering of computer software,and to expand the legal scope of reverse engineering of computer software and break through the limitations of the European and American models.The third suggestion is the explicit denial of the effectiveness of the reverse engineering terms of computer software if the contractual prohibition of the software reverse engineering prohibit that reverse engineering as fair use or exception of trade secret protection.