Software source code and target code should be differentiated protection (reprint news)

As the new chief executive of Microsoft, Seia Nadra, said: "The world today is driven by software", the importance of software needless to say, China's software into the copyright Law has been protected for years, but so far the legal definition of software and legal protection is still very vague. China's current "Computer software protection regulations," the same computer program of the source program and the target program as the same work, but the source program and the target program is not the same nature, the error in the regulation of the software will adversely affect the protection. Therefore, it is necessary for China to re-examine the legal nature of software to perfect the legal protection system of software, or to make special laws to protect and regulate the software separately.

This paper expounds the source of the conflict of software copyright protection, points out the fallacy in the existing regulations of computer software protection, and puts forward some suggestions on how to improve the law without violating TRIPS and relevant international conventions.

Two kinds of code are different in nature

  software is relative to hardware, hardware refers to the computer, Software is a program written by programmers using a computer language or source code), consisting of a series of instructions and data. Instruction and data through the computer's input and output module is stored in memory, the central processing unit in turn to execute in-memory instructions, and the results of the execution returned to the memory or input and output module, this is the basic operating mode of the computer.

  Depending on the application, programmers choose different computer languages to program, from earlier machine languages (or "Combinatorial language") to the now popular basic language, c language, java Language, html language, and so on. Some languages (such as c language) programs need to be processed by the compiler to produce target code that can be executed by the computer, packaged or connected as cured " Executable code, loaded memory is executed directly by the central processing Unit, and some languages do not need to be compiled by an intermediate software, such as basic The source code of the language is executed by the parser, html language is executed by the browser; java the source code of the language is compiled after the object is not executed directly by the central processing unit but by java virtual machine on its behalf. It is not negligible that early programmers often use machine language to program directly, and the source code (and also the target code) "Burn into" the computer memory by the central processing unit directly executed.

  Although the source code written by the programmer translates to the path of the executable code, They are executed in different ways, but either in the original machine language (low-order language, with the appearance of the target code), or in non-machine languages (higher-order languages such as basic , java The source code written by , html , and so on, has the appearance of text, can express the programmer's thought, and is the product of the programmer's intellectual activity. Belonging to the text works to enjoy the protection of copyright law, and the object code generated by the machine, its text appearance only by "0 " and "1 "2 of symbols, the general people can not be perceived by their appearance of their contents or ideas, the machine automatically generated rather than human intelligence activities under the product, Therefore, it does not conform to the definition of written works under the copyright law, and should not be protected by copyright law.

The purpose and value of computer operation is to solve arithmetic or logic problem, and function is its main purpose and value. Software as the brain of the computer, responsible for the operation of the hardware, its purpose and value directly determine the purpose and value of the computer. In fact, the software source program (or source code) is the spokesperson of the programmer, through the source program, the programmer directs every action of the computer to solve some arithmetic or logic problem. However, it is not negligible that the source program also acts as a communication medium between programmers through its textual appearance, which means communication or appreciation. The source program is like the micro-product equation, although most people do not know the micro-product equation, but the micro-product equation is the communication medium between mathematicians, the source program and the micro-product equation are the products of human intelligence activities, with a text appearance, although not for the general understanding of the text or symbols, but does not prevent it to become a copyright law protected by copyright law.

The Target code (this article only refers to the machine-generated target code, because programmers write the target code is functional and communication) is not, its sole purpose is to be executed by the computer, programmers do not use this as a medium of communication. In short, the function is its unique attribute, the communication is non-existent from beginning to finish, cannot become the work under the copyright law and protected by the copyright law. Although programmers can decipher the object code by reverse engineering, it is the product of derivation or deduction, not the property of "work".

It is important to note that, in the legal sense, computers refer to Computer based on the Vonneumann structure, and other non-textual "software" for other kinds of computers (such as biological computers) are not protected by copyright law.

Foreign regulations can be used for reference

After understanding the essential properties of computer programs, look at how national laws or international conventions define computer programs :

World Intellectual Property Organization (WIPO)model clauses for the protection of computer software(1978 ) The computer software is defined as a computer-readable medium, enabling the computer to have the ability to process information and to complete a specific function, A set of instructions that perform a particular task or reach a particular result.

United States Copyright Act (1980 ) 101th stipulates that a computer program refers to a sequence of statements or instructions that are used directly or indirectly in a computer to produce a certain result.

the EC Directive on legal protection of computer programs (1991 ) stipulates that computer programs contain various forms of procedures, including those embedded in the hardware, as well as preparatory design materials that can be developed into computer programs at a later stage.

TRIPS(1994 ) tenth stipulates that computer programs, regardless of source code or target code, are protected as written works under the Berne Convention.

The WIPO Copyright Treaty (WCT,1996 ) fourth stipulates that computer programs are protected as written works in article II of the Berne Convention, regardless of their form and manner of expression.

China's current regulations on computer software protection (2001 ) Article II stipulates that computer software refers to computer programs and related documents. The third article stipulates that a computer program is a sequence of coded instructions that can be executed by a device with information processing capability, such as a computer, for the purpose of obtaining a result, or a symbolic sequence of instructions or a symbolic sequence of statements that can be automatically converted into a coded instruction sequence. The source program and the target program for the same computer program are the same work.

On the above definition of computer programs, it is not difficult to find that, in addition to our country and the EU and other countries and organizations to adopt a functional definition, that is, only from the functional point of view of the computer program definition, only the minimum form standard (ie, Directive), regardless of the form of the program, No intentional distinction is made between source code or target code. Looking at the definition of the past, the U.S. definition of software is the most open, the most relaxed and the most appropriate, because the rapid progress of science and technology is often unexpected, and technology-related laws and regulations should focus on the function and effect rather than means or methods.

China has adopted a consistent definition with the EU, even the superfluous source code and target code as the same work, this is a great fallacy. China's current "Computer software protection regulations" is actually derived from the EC's "Computer Program law Protection Directive", the spirit and content of the basic all from the order to transplant, but the directive does not use the source code and target code as the same work, so, in terms of statutory law, basically self-made system, in the jurisprudence, although imperfect, But it can still be justified. The "Same work" is too lethal to jurisprudence, the most notable and most important of which is the publication of works. In general, the publication of a work is the premise of the exercise of the property rights, and the right to exhaustion, any work after the public publication of the protection of trade secrets is no longer applicable, also does not matter reverse engineering one said.

If the target code is the same work as the source code, then the public publication of the target code means that the source code is published, and those with trade secret as the protection means the source is lost the secrecy, thus losing the protection of the trade secret. As a result, some non-public source software patent applications, due to the publication of the target code and lost novelty, thereby losing the possibility of patent licensing, and even more, the software patents have been wrongly authorized to be corrected in a timely manner, the patents granted by the patent shall be void. Therefore, the source code is a work, should be protected by the copyright law, and the target code by the law can be regarded as works and protected, but they must not be the same work.

Special Treatment of particular works

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computer software is an alternative work in copyright law, its essential attributes and other works are very different, especially the target code, even if the future revision of the law and the source code is no longer the same work, but still cannot change its non-communication or appreciation of the essential attributes, should be treated differently from other works. If it is protected by administrative regulations, it inevitably conflicts with the legislative purpose of the upper Law (copyright law), and the embarrassing situation that the inferior law violates the upper law. Therefore, the author thinks that the special law to protect and regulate the computer software is the radical reform way. (Wang Yunjia is a PhD student in intellectual property law)

Software source code and target code should be differentiated protection (reprint news)