Graduation thesis-The challenge and countermeasure of intellectual property protection of computer software _ graduation Thesis

Copyright law protects the limitations of computer software
(i) Copyright law protects the mainstream of computer software in the late 80, many countries, led by the United States, began to amend copyright law to incorporate computer software into the protection object of copyright law. In the December 1980, the United States amended the Copyright law, formally confirmed that the computer software as a general writing works of copyright law protection object. 1985 Japan amended the Copyright law, the computer software copyright protection. May 14, 1991, the EC Ministerial Council promulgated the "Computer Program Law Protection Directive" on the Protection of objects, program authors, reverse engineering, special protection measures, etc. made detailed provisions. Therefore, the EC finally introduced a unified copyright law protection system in the legal protection of computer programs. In April 1994, the World Trade Organization (WTO) signed the T R I P S agreement, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 10th 1th of which stipulates that a computer program must be protected by a Member State or a member region as a "written work" referred to in the Berne Convention. The T R I P S protocol, as one of the fundamental agreements for W T O, is the first international treaty to explicitly specify the copyright protection of computer software. The agreement lays the foundation for the establishment of the legal protection system of computer software copyright in the world, and also indicates that the copyright model has dominated the intellectual property protection of computer software. At present, more than 60 countries and regions have adopted copyright law to protect computer software in the world. Some of these countries have adopted traditional copyright laws to protect computer software (such as the United States), some under copyright laws specifically to create computer protection laws (such as China), and in the original copyright law to include specific provisions for computer software, such as the EC-related countries.
(ii) Copyright protection of computer software defects Although the copyright law protects the software to have the advantageous advantage, but the software and the traditional work in many respects has the important difference, this causes its legal protection question not to be fully integrated in the copyright law domain. In practice, there are various defects in the protection mode of copyright law, which is also the reason why the protection mode has been debated so far. Specifically, these defects are mainly manifested in the following aspects. The first is that the scope of protection provided by copyright law is not sufficient for software. The manifestation of software is both a writing work and a specific computer processing process to solve a specific problem. The software is both functional and instrumental, which makes the software contain quite a number of creative technical factors, it mainly manifests in the software development process to the software function, the structure and so on the idea, because the copyright law only protects the work the expression, does not protect the work the thought, the principle, the concept, the method, the formula, the algorithm and so on, therefore, For the computer software, only the performance of the program is protected by the copyright law, but the procedural conception and the procedure skill which embody its tool are not protected. In fact, the technical design of computer programs, such as software development in the software function, the concept of the structure is often more important than the program code of technical achievements, usually embodies the software development of the main creative contribution. These technical factors are the essence of the software. In the words of German lawyer Geissler, "the protection that computer software needs is still a technological creation." From this perspective, the scope of protection of traditional copyright law is too narrow for all the people in computer software. The second is how to reasonably define the specific scope of the expression of the software works. For the traditional copyright system, it is also a difficult problem to deal with. The infringement cognizance of copyright law distinguishes thought and expression, and this distinction is very difficult for software works. Because the expression of the software works is very close to the idea, in the process of coding the idea, it is not necessary to be creative, so it is easy to write similar programs according to a specific idea. The close relationship between the thought and expression of this procedure is called "the mixture of thought and expression", and it is this mixture that makes it very difficult to distinguish the ideas and expressions of software.
Third, the traditional copyright law on the protection of spiritual rights is not conducive to the development of software. Software copyright protection is not conducive to the development of software factors, highlighted in the "public" and "modification." On the one hand, computer software (mainly source code) can enjoy copyright protection without public, and source code for software technology progress and communication is of great significance. On the other hand, the author of the software works has the right to maintain the integrity of the work and not allow unauthorized modification. Although the legal user of the software has a certain right to modify, but also limited to their own use of the need to modify, and can not make the modified software available to others to use. Therefore, the further improvement of software is only the privilege of the software right person, other people without the consent of the obligee, even if the software found in the defects and errors, can not be modified to obtain their own copyright. This is to a certain extent not conducive to the exchange of software technology and communication, increased the cost of software development, which has a negative impact on the development of software. The copyright protection only considers to prevent duplication, and does not protect the use of software as well as patent protection. In fact, the right people care about software replication is also to prevent the use of unauthorized software, the core value of software is the use of rights. In other words, software can only create value for society when it is used, and the benefit of software developers is realized through the use of software. The rights of software developers are not adequately protected if illegal copying is prohibited and illegal use is prohibited. The other is the term of protection. Traditional copyright law to protect the work of the term is generally the author of 50 Years of life Plus. Unlike traditional writing works, the existence value of software is its practicality. Because of the rapid upgrading of software, such a long period of protection is not necessary, and can thus hinder technological progress. The sixth is that the copyright law provides a very light tort sanction. The main sanction for copyright infringement is civil compensation, which rarely involves penalty, which is consistent with the practicality of ordinary works. But software replication is extremely easy, and the cost is very low, and the tool of software makes its economic value is extremely high, illegal copy distribution is lucrative. And the software industry is gradually becoming a pillar industry, the infringement of software will seriously affect the economic order, so the punishment is too light, do not play a corresponding role. In addition, there are obvious defects in the protection mode of the copyright law in the aspects of software Operation interface Protection, program module protection and the reasonable use of software. Some of these deficiencies can be solved by adjusting and supplementing the relevant legal content under the premise of complying with the basic principles of copyright law, while others cannot be properly solved in the traditional copyright field. In a word, how to provide adequate and not excessive protection for the special object of software is a big problem of copyright law.
The difficulties encountered in protecting computer software by patent law, computer graduation thesis
(i) discussion on the patentability of computer software although the copyright protection mode of software has been dominant, the malpractice of copyright protection mode has gradually appeared, and the countries have not given up the patent protection of software. The key to protecting computer software with patent law is the patentability of computer software. From the initial patentability to the patentability, the understanding of software patent protection has undergone a tortuous process. With the rapid development of Internet and electronic commerce, with the development of software industry, in order to strengthen the protection of software rights, the patent protection of computer software is expanding trend. Computer software is a logical entity, not a concrete material entity. Its core lies in the algorithm, therefore has the certain abstraction. At first, because people equate software with algorithms, they think of software as a rule of intellectual activity and exclude it from patent protection. With the deepening of people's understanding of software tools, software patent protection is gradually put on the agenda. U.S. Patent Law 101 stipulates: All useful, new, and obvious intellectual achievements, whether it is a method, a machine, a product or a combination of all substances, are likely to be patented, the United States patent law to protect "in the sun of all things created by mankind." It can be seen that the U.S. patent law does not expressly exclude the possibility of a patent for computer software. To solve the patentability of computer software, the following two problems must be clarified: first, the technical characteristics of computer software require software patent protection. The purpose of the patent law is to encourage and promote the progress of science and technology, so the intellectual achievements it protects must be of a certain technical nature, that is, the use of natural rules or natural phenomena. Article 27  of the trips  Agreement stipulates: "All inventions in the field of technology can be protected by patent", the Japanese patent law, article 2  stipulates: "The invention is the use of the natural laws of the highly creative technology." "Invention is a technical solution to the use of natural rules and natural phenomena to solve a particular problem in the technical field." The examination of an invention must first be judged by its technical nature. If the patent system to protect the software, first of all must be clear whether the software belongs to the technical field, whether it is technical products. On the one hand, software utilizes the laws of nature. The core of the computer software is the algorithm, and the algorithm is a rule of intellectual activity, the use of the software is to the specific use of this rule and through the operation of the algorithm to bring certain technical results; On the other hand, the use of software in conjunction with computers or other machines is a specific technical solution. The use of software is to get certain technical results, to solve certain technical problems. The computer software has certain dependence to the hardware, the program must realize the function by the hardware, the whole procedure work process is the software and the hardware unifies the process. For users, the combination of software and hardware constitutes a tool device. Computer software must be combined with hardware to achieve its purpose, in this sense, software, hardware in the completion of specific functions is an organic whole, can be regarded as a special"Device", "product". Software realizes the indirect use of the laws of nature and phenomena, so there is a certain technical second, the algorithm and computer software can not be completely equated. In essence, computer software is the use of computer hardware can read language symbols to dominate the hardware and peripherals to achieve a certain function. The algorithm is the grammar of this language and is the core of the software. In particular, the algorithm refers to a series of processing steps to the data, is a certain data structure to operate to solve a certain problem of the method and process, belong to the design of computer programs. In form, an abstract algorithm is defined as pure logic without any physical entity, which seems to be merely a kind of "natural law" or "mathematical Formula", which belongs to the "rules and methods of intellectual activity", and therefore concludes that the software does not belong to the scope of patent protection.  www.st35.com 
(b) The difficulty of realizing the software patent right is a patent approved by the patent Office, which does not mean that the patentee will rest easy. To truly uphold a patent, it must prevail over the legitimate challenges of patent validity. In most patent infringement cases, the defendant would counterclaim, claiming that the patent was invalid, which would make the patent office wrong or confused. At times, courts have found more patents that are ineffective than the patents they maintain. In this way, it is often quite dangerous to accuse someone of infringing a patent or defending a patent, because the patent itself may have expired. The United States has set up a Federal circuit Court of Appeals in Washington to deal with patents in i982  years. Since then, the inefficiency of patents has been greatly reduced. However, the maintenance of a patent is still not so smooth, only after careful study, can be sued. This is especially true for software patents, because the patent Office has not been awarded many software patents for a long time, and its online technology library is very limited. Many software patents that are reviewed are not suitable for patenting because the patent office does not know whether the invention presented is obvious or known. These patents will be the object of the declared failure. In fact, in view of all these dangers, many of the most influential software patents have yet to be implemented. For example,,ibm  has a patent for interactive data entry systems, and it is worth discussing that this patent can cover almost every data entry or database software program, in which,ibm  is granted a monopoly over the 17  years (the duration of the patent). However,,ibm  did not actively implement the patent. In fact, many applications for software patents are for defensive purposes, so no one else or company will be able to apply for exclusive rights to the technology. The problem of protecting computer software by trade secret law has many advantages for computer software, which is protected by trade secret law. First, the protection of trade secrets has the convenience of obtaining. The protection of the commercial secrets of computer software is not required to perform any formalities, for the development of software and developed software, the right person can be valuable information in the protection of some of the confidential measures to protect, the legal recognition of this automatic and immediate protection. Secondly, the use of commercial secrets to protect the software has the infinite time. From the point of view of trade secret, as long as the obligee takes the secrecy measure to protect its information from the public, the benefit of the computer software holder can be protected to the maximum extent. In addition, the trade secret law also has the universality of the protection object. The trade secret law can protect the procedure, document and various technical conceptions before and after the development, and provide the right people with a wide range of rights choice. Because the trade secret law has these advantages, a considerable number of software developers rely on trade secrets laws to protect their competitive computer software from being compromised. According to statistics, the United States has 78%  software manufacturers to use business secrets and license contracts to protect their software. However, the trade secret protection software also has some deficiencies, the main performance is: First, the vulnerability of protection. Trade secrets Do notHave exclusive rights, can not exclude others through lawful means to obtain the right person to take confidential measures of information. In the case of computer software, the obligee cannot prevent the legal purchaser from compiling the computer software to get the source code of the software. and the source code of the software is the core secret of the software that the developer adopts the secrecy measure. In addition, an inadvertent disclosure by the owner of a trade secret or an unlawful disclosure by a third person with a confidentiality obligation may lead to the failure of software trade secret protection. Secondly, it is easy to monopolize the nature. The use of trade secrets to protect software is not conducive to the follow-up research and improvement of software, may cause improper use of the rights of the public to impose undue restrictions, and easy to cause the industry monopoly. It is a clear example of how Microsoft's business secrets protect its source code from being compromised, leading to a suspected monopoly. Third, the protection is more difficult. Commercial secret protection software requires software developers to protect software and related materials from the beginning of development, but many software company managers often ignore the confidentiality requirements of trade secrets and the secrecy measures taken by software are not enough. Even if the secrecy measures are strong, the cost is not low. In addition, the source code of the program is protected as a trade secret, and it is not conducive to the technological progress of the whole society. Four, the trade secret stipulation in the competition law of each country, the stipulation that each country sets is different. So far, the international protection of trade secrets has not yet formed a uniform international standard, and no international reciprocal treaty has been concluded. The development of computer software and the need for a unified international protection, to develop a corresponding convention, there is still a long way to go. Therefore, for the software in development, as long as the right person to take strong measures to protect the software development involved in some valuable technical information and business information, trade secret law protection is a good choice. For the development and completion of the software into circulation, because of the reverse engineering, the trade secret law can only use and play a role in a certain extent. The solution to the challenge of the intellectual property protection of computer software when people realize that it is necessary to provide legal protection for software, "The choice of the way to protect" becomes the primary issue to be considered. In view of the special complexity of the new object created by software, the rapid development of both computer technology has led to new problems and people have to continue to explore. The corresponding legislation and judicial practice, also in the constant adjustment, the pattern choice also has the repetition phenomenon. Although most countries today use copyright laws to protect software, the reality does not equal the conclusion. Copyright law protection Software is gratifying achievements, the development of software industry has made a remarkable contribution, but also encountered a lot of difficult problems. As a result, judicial circles in various countries have gradually relaxed the standards of software patent censorship, and the phenomenon of returning from copyright protection to patent protection has arisen. However, both theory and practice have shown that the main drawback of traditional copyright law protection mode is "insufficiency", while the main defect of the Pure patent protection mode is "too much". Www.st35.com is so ideal.What is the protection mode?? 
(i) the ideal model for software protection in view of the above reasons, Zheng Chengsi, a famous intellectual property expert in China, puts forward the theory of "orange zone", proposes to establish the industrial copyright system of software protection, combines the copyright protection method of the software with the patent protection method, takes both the length and the short of the two, and forms a new software legal protection system. This represents the idea of a special legislation to protect the software. This special legislative cross protection model has precedent, which is the protection of industrial designs and the protection of semiconductor chips. Theoretically, this is the best way to protect software. In fact, as early as 1978, the World Intellectual Property Organization published its Model Law on the protection of computer software, which has actually incorporated industrial property law and copyright law as an embryonic form of industrial copyright law, but it has not been widely responded to. Instead of developing into a mainstream model of reality, as one would expect, the trend towards the protection of software by copyright law has become increasingly stronger and ultimately the international mainstream. In addition to the advantages of the relative suitability of the copyright protection model, Another important reason is the rapid rise of the software industry and the need for software protection. From the point of view of legislation, it is very hard to wait for the drafting and discussion of the long and time-consuming special laws. It is more convenient to protect software directly by copyright law. From the point of view of international protection, since most of the countries that have established the software industry have enacted copyright laws, they are members of the Berne Convention and the Universal Copyright Convention, and if the mode of copyright protection is adopted, no new multilateral convention is necessary. Otherwise, if a new multilateral convention is to be concluded, it is not known how long it will take the participating countries to achieve a significant number of effective measures, and it will be more difficult to influence the wider. As a result, some big powers are eager to defend their own interests and urge countries to use copyright laws to protect software. Therefore, countries in the legislation to negate the special legislative protection mode, not from the theory of software "industrial copyright" in the negative. In the practice of software protection, the "industrial copyright" mode is actually working. Whether it is the SSO criterion in will case or the later "three-step Review method", the judge uses the interpretation of "thought and expression" to break through the limitation of the traditional copyright law, and to take the road of industrial copyright protection in essence. Therefore, this article holds that the "Orange zone" theory is not outdated, industrial copyright model is still the development trend of software protection legislation.
(ii) The best way to solve the problem of software protection so, in the current practice, what mode should we use to fully protect the software? The author thinks, from single copyright protection to comprehensive comprehensive protection development is the general trend. It is the best way to solve the problem of software protection to establish a comprehensive protection mode which takes the copyright law as the backbone, and the patent law, the anti-unfair competition law, the trade secret method, the trademark Act and the Contract law as its wings. Specifically, if the subject of the specific software is technical and is the legal subject protected by the patent law, the patent law can be used to protect the creative thought results which conform to the invention condition. For specialized software developed for a very small number of specialized users, the trade secret law and the contract law can be used to protect the technical secrets. For software that has established good reputation, trademarks can be used to help users identify their sources. In addition, some new situations that can not be found in software protection may be adjusted by the anti-unfair competition law, thus making up for the deficiencies of various legislations. It can be seen that in the current practice of protecting computer software, the specific characteristics of the software should be used to combine all kinds of relevant legal systems, and to use a complete protection system to protect the software appropriately. More Computer graduation Papers please find in the 2000-year website.