How companies protect computer software - Scope of protection for computer software copyrights

Author | Intellectual Property Center, Lawyer Wang Qionghua

As the foundation of supporting computing, network and data, software plays a crucial role in the digital economy era. For example, in the fields of artificial intelligence, communication, cloud computing, big data, Internet of Things, etc., a large number of computer software are involved. Due to the significant difference between computer software and general copyright objects and the highly technical nature of computer software cases themselves, computer software copyright infringement has become a hot and difficult issue in intellectual property judicial practice.

The annual report of the Intellectual Property Court of the Supreme People's Court (2021) and the annual report of the Intellectual Property Court of the Supreme People's Court (2022) issued by the Supreme People's Court respectively pointed out that "in 2021, a total of 2,569 new civil second-instance substantive cases were received, including 806 disputes over infringement of utility model patents, 593 disputes over computer software, and 576 disputes over infringement of invention patents"; "In 2022, 2,956 new civil second-instance substantive cases were received, 615 disputes over infringement of invention patents, 968 disputes over infringement of utility model patents, and 6

48disputes over computer software."

Computer software disputes have been the second largest type of case received by the Supreme People's Court for two consecutive years.

This series of sharing articles combines the team's many years of experience in handling computer software copyright disputes, and intends to comprehensively analyze the practical points of judicial protection of computer software copyright from simple to deep. As the first article in this series, this article first studies the scope of computer software copyright protection.

First, the protection object of copyright law

The objects protected by the Copyright Law are intellectual achievements with originality and can be expressed in certain forms, including computer software. According to the provisions of Articles 4 and 6 of the Regulations on the Protection of Computer Software in our country, software copyright protects computer software independently developed by developers and fixed on a certain tangible object; the protection of software copyright does not extend to the ideas, processing procedures, operating methods or mathematical concepts used to develop the software.

This is in line with the basic principle that copyright law protects expression but not ideas.

II. Scope of computer software protection

Article 2 of the Regulations on the Protection of Computer Software stipulates that the term computer software as mentioned in these Regulations refers to computer programs and their related documents. It can be seen that the scope of legal protection of computer software is computer programs and corresponding documents.

1. Computer programs

The first paragraph of Article 3 of the Regulations on the Protection of Computer Software stipulates that a computer program refers to a sequence of coded instructions that can be executed by a computer or other device with information processing capabilities in order to obtain a certain result, or a sequence of symbolic instructions or a sequence of symbolic statements that can be automatically converted into a sequence of coded instructions. The source program and the object program of the same computer program are the same work.

The existence form of a computer program contains four levels of content I: the algorithm level, the source code level, the object code level, and the execution instruction level. Algorithms are generally regarded as a developer's idea rather than expression, so they do not fall within the protection scope of copyright law. The "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases of Infringement of Trade Secrets" issued by the Supreme People's Court on September 12, 2020 clearly includes algorithms and data in the protection scope of trade secrets. It can be seen that algorithms can be protected through the protection of trade secrets.

Source code II refers to a text file written by a developer using a certain programming language specification through numbers, statements, and symbols according to programming rules, fixed on a certain medium, forming a program in the form of source code. It is a human-readable computer language instruction that reflects the developer's "expression".

Such as C++, Java language, etc. The object code iii is the code generated from the source code to the running process, which can be directly run by the machine and corresponds to the expression of the source code, which belongs to the category of expression, such as assembly language and machine language in the form of binary files. Execution instructions, instructions formed by debugging the object code, rely on the combination of software and hardware, lack independence, and do not have the characteristics of copyright protection.

Therefore, only source and object programs are protected in computer software.

2. Documentation

Documents in computer software overlap with ordinary written works to a certain extent, and only become part of computer software because they are related to software. Article 3, paragraph 2 of the "Regulations on the Protection of Computer Software" stipulates that documents refer to written materials and diagrams used to describe the content, composition, design, functional specifications, development, test results and usage methods of a program, such as program design instructions, flowcharts, user manuals, etc.

Although the above regulations list only three items, there are far more than three types of documents in the process of computer software development. According to the "Computer Software Documentation Specifications", generally speaking, a software life cycle can be divided into the following six stages: feasibility and planning research stage, requirements analysis stage, design stage, implementation stage, testing stage, and operation and maintenance stage.

In accordance with the "Computer Software Documentation Specification" documentation requirements, in the software life cycle, generally speaking, the following basic documents should be produced: Feasibility analysis (research) report, software (project) development plan, software requirements specification, interface requirements specification, system/subsystem design (structural design) specification, software (structural) design specification, interface design specification, database (top-level) design specification, (software) user manual, operation manual, test plan, test report, software configuration management plan, software quality assurance plan, monthly development progress report, project development summary report, software 18 kinds of documents such as product specifications and software version instructions.

The above documents shall be included in the scope of software protection in accordance with the provisions of the "Regulations on the Protection of Computer Software" and protected as part of the software as a whole. The copyright protection of a complete software work shall be in the sense of protection as a whole, that is, the copyright of the software as a whole, and each document will not be protected independently.

The Supreme People's Court pointed out in the "Chen Zongguang, Dongying Neusoft Computer Technology Co., Ltd. Computer Software Copyright Dispute, Copyright Dispute Case" [ (2020) Supreme Law Zhimin Zhi No. 716] second-instance court verdict that software documents are used to describe the content, composition, design, functional specifications, development, test results and usage methods of software programs. Text materials and diagrams, in the absence of a corresponding computer software program, generally do not become the object of computer software protection alone.

III. Exceptions to copyright protection for computer software- "limited expression"

"Limited expression" is also known as "unique expression", and some scholars also call it "the merger of thought and expression". In the inseparable state of thought and expression, if copyright protects expression, it essentially protects thought, which is inconsistent with the original intention of copyright law. If there is only one or a very limited number of expressions of an idea, the use of this expression by others in expressing this idea does not constitute infringement.

Article 29 of the "Regulations on the Protection of Computer Software" stipulates that software developed by software developers that is similar to existing software due to limited expression options does not constitute infringement of the copyright of existing software.

Yi Cao Wei: "Reflection and Transcendence of Copyright Protection of Computer Software", Law Press 2010, p. 46.

Ii "Software Similarity Identification Implementation Specification SF/Z JD0403001-2014 (20140317) " Article 2.4: Source code source code refers to uncompiled, written in accordance with certain programming language specifications, human-readable computer instruction language instructions.

"Software similarity identification implementation specification SF/Z JD0403001-2014 (20140317) " Article 2.5: Object program object code refers to a collection of machine code generated by a compiler or assembler after processing the source code and can be directly run by a computer.

Wang Qian: "Intellectual Property Law Course", Renmin University of China Press, 2021, p. 136.

V "Analysis of New and Difficult Issues in Intellectual Property Judicial Practice: Hot Issues in Patents, Trademarks and Copyright", China Legal Press 2017, p. 690.

Zhang Xiaojin, "Research on Computer Software Copyright Infringement Judgment", Intellectual Property, No. 1, 2006.

Lawyer Profile

Lawyer Wang Qionghua

, Partner Lawyer

Secretary General, Copyright Law Professional Committee of Shenzhen Law Association

Secretary General of Zhiheng Intellectual Property Center, Deputy Director of Copyright Committee

Areas of expertise:

Intellectual property (criminal-civil cross), corporate compliance

Corporate legal counsel, civil and commercial dispute resolution

Publication representative:

"Long'an Lawyers Interpretation of the Civil Code" Contract Compilation

"Internet Law Course"

"Evaluation on Typical Cases of People's Mediation in Futian District, Shenzhen"

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Intellectual Property Center

Objective of Zhiheng Intellectual Property Center: To build a first-class intellectual property legal service center.

The Intellectual Property Center has a complete set of specialized intellectual property departments such as patents, trademarks, copyrights, trade secrets, rights protection, international, layout analysis, and operation transactions, forming a complete industrial chain from basic applications, planning and layout, risk prevention and control, anti-counterfeiting rights protection, operation transactions, and international protection.

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