Determination of "Reasonable Explanation" - Infringement Determination Rules in Computer Software Copyright Cases (Part 2)
Author | Intellectual Property Center, Lawyer Wang Qionghua
directory
01 Independent development and reverse engineering
02 Fair Use
03 Expression is limited
04 Legitimate sources
The legislative purpose of copyright law is not only to protect the rights of authors and encourage their creative works, but also to promote the dissemination and use of works, enrich people's spiritual and cultural life, improve people's scientific and cultural quality, and promote economic development and social progress.[1]Therefore, while protecting the author's rights, it also restricts the rights to a certain extent, and the fair use system is an important restriction.
"Contact + substantial similarity" is the core rule of the infringement determination of works, and "exclusion of reasonable explanation" is a supplementary determination of the "contact + substantial similarity" principle. Defendants can defend non-infringement through "reasonable explanation" or the access channel of the software work is a "reasonable source". The reasons for reasonable explanation generally include the following situations:
01 Independent development and reverse engineering
If the defendant can provide evidence to prove that the alleged infringing software was developed independently, it should be found to be established but the burden of proof should be borne. Independent research and development must provide relevant evidence as a defense of infringement. Generally speaking, it includes the personnel involved in the research and development, the process, the failure records, the phased results, the equipment, materials and personnel time investment purchased by the research and development, etc., to form a complete chain of evidence, so as to prove that it was indeed obtained through independent research and development.
Reverse engineering defense is the most common defense method in civil litigation of trade secrets, and it is also applicable to computer software copyright disputes. Reverse engineering, also known as restoration engineering, is an important method in the process of software development and use. Its basic idea is to obtain the source program through the object program[2]。
There are usually two basic ways of reverse engineering, one is to deduce the corresponding source program through the analysis of the software object program. The other is the so-called "black box" method, that is, without touching the program code, directly analyze the input and output results according to the function of the program, so as to deduce the design idea and structure of the software program.
[3]Article 14 of 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 stipulates that where the alleged infringement information is obtained through self-development or reverse engineering, the people's court shall determine that it does not constitute an infringement of trade secrets as stipulated in Article 9 of the Anti-Unfair Competition Law.
The author believes that the same applies to the trial of computer software copyright disputes. It is worth noting that there has been a great controversy about the legality of reverse engineering in the computer software industry. According to the views of judges Song Jian and Gu Tao of the Jiangsu High Court, reasonable reverse engineering should be supported.
Beijing Shatuo Petrochemical Engineering Technology Development Co., Ltd. and Xu Quan, Yu Fei, and Beijing Huaao Xingda Engineering Technology Development Co., Ltd. Infringement of Computer Software Copyright Dispute Case[4]The People's Court of Haidian District, Beijing held that by conducting reverse analysis and research on the target program of other people's software, the design elements such as the ideas, principles, structures, algorithms, processing procedures, and operation methods used by other people's software can be deduced, which can be used as a reference when developing their own software or directly used in their own software. This practice is called software reverse engineering.
Software reverse engineering restores the target program of other people's software to source code by disassembling or decompiling, etc. In this process, whether other people's software is stored in electromagnetic media or printed on paper media, software reverse engineering inevitably involves the copying and deduction of other people's software; whether such copying and deduction infringes the copyright of other people's software needs to be checked whether it complies with Article 22 (6) of the Copyright Law of our country, that is, "for school classroom teaching or scientific research, translate or copy a small amount of published works for the use of teaching or scientific research personnel, but not for publication and distribution". For example, software reverse engineering The copying and deduction of the software can constitute fair use, and at least the software reverse engineer must be a legitimate user of other people's software, the software reverse engineer is for the purpose of school classroom teaching or scientific research, and the software developed by the software reverse engineer must not be substantially similar to other people's software.
02 Fair Use
Article 17 of the Regulations on the Protection of Computer Software shall be applied first to the determination of the fair use of computer software copyright in our country, combined with Article 24 of the Copyright Law amended in 2020 for specific analysis. Article 17 of the Regulations on the Protection of Computer Software stipulates: "In order to learn and study the design ideas and principles contained in the software, software may be used by installing, displaying, transmitting or storing software, etc., without the permission of the software copyright owner, and no remuneration may be paid to it."
The defendant's defense based on this should generally be found to be established.
03 Expression is limited
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 methods available does not constitute infringement of existing software copyright. It should be noted that if the defendant claims the defense of limited expression methods, the burden of proof shall be borne.
04 Legitimate sources
Article 30 of the "Regulations on the Protection of Computer Software" stipulates that if the holder of a copy of the software does not know and has no reasonable reason to know that the software is an infringing copy, he shall not be liable for compensation; however, he shall stop using or destroying the infringing copy. If stopping the use and destroying the infringing copy will cause heavy losses to the user of the copy, the user of the copy may continue to use it after paying a reasonable fee to the software copyright owner.
According to the aforementioned provisions, the establishment of the legitimate source defense requires two conditions: first, the subjective goodwill of the accused infringer, that is, the holder of the software copy does not know and has no reasonable reason to know that the software is an infringing copy; second, the accused infringer Objectively has a legitimate source for obtaining the alleged infringing software, that is, the software copy holder can prove that it has a legitimate source for the copy.
Changsha Mituo Information Technology Co., Ltd., Ningbo Shanta Plastic Co., Ltd. Infringement of Computer Software Copyright Dispute Case[5]The Supreme People's Court held that, first of all, the defendant provided the specific information that the outsider designed its website for it, and submitted payment information to prove its claim.
From the payment information, it can be seen that the name of the online store involved in the case is "Dahua Design", and the name of the product purchased by the defendant is "Metinfo/Mituo cms Template Customization", which includes services such as "template customization" and "page modification". Judging from the name of the product sold by the online store and the type of service provided, the defendant did not know and had no reasonable reason to know that the purchased product was a suspected infringing product, and it did not have subjective intent to infringe.
Secondly, the defendant obtained the software involved in the case through normal software purchase channels and paid a reasonable market consideration of 1,500 yuan, which was in line with business practices. The relevant evidence of the transaction behavior was relevant and objectively proved that the product had a legal source. Therefore, the court of first instance applied Article 30 of the "Computer Software Protection Regulations" to find that the defendant's defense of legal origin was established, and it was not improper.
It is worth noting that in the defense of legal origin, the defendant should provide evidence of the fact of legal origin. Article 4 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation of Intellectual Property Rights" provides in detail: "If the defendant claims the defense of legal origin according to law, it shall provide evidence to prove the fact that the accused infringing product or replica was lawfully obtained, including legal purchase channels, reasonable prices, and direct suppliers.
If the evidence of the source of the alleged infringing product or replica provided by the defendant is equivalent to the degree of its reasonable duty of care, it can be determined that the defendant has completed the evidence mentioned in the preceding paragraph, and it is presumed that he did not know that the alleged infringing product or replica infringes intellectual property rights. The defendant's business scale, professional level, market trading habits, etc. can be used as evidence to determine its reasonable duty of care.
Shi Hong. Important Contents and Value Considerations of the Third Amendment to the Copyright Law [J]. Intellectual Property, 2021 (02): 8.
[2] Zhang Enmin: "Copyright Law", Law Press, 1st Edition, 2005, p. 318.
Sun Tiecheng. Computer and Law [M], Law Press, 1998:164.
[4] Case No.: (2006) Haimin Chuzi No. 16187
[5] Case No.: (2022) Supreme Court Zhimin End No. 661
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Wang Qionghua, Lawyer
, Partner Lawyer
Secretary General, Copyright Law Professional Committee of Shenzhen Law Association
Secretary General of Zhiheng Intellectual Property Center, Deputy Director of Copyright Committee
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