(By Luo Yanjie) Abstract: The principle of computer software infringement primarily involves materially similarity and contact. The similar or identical software does not constitute copyright infringement if the available expression methods are finite. But the similar or identical software shall be a work produced respectively and independently, and shall not be a plagiarized or copied one of others’.
Software industry is the heart and soul of the information industry and plays a crucial role in a country’s economic development all over the world. It is of great significance of setting clear standards on the protection scope of computer software and on the judgment of the software copyright infringement to protect the software industry. In today’s post, we will introduce a common problem in software infringement whether finite expression methods constitute an infringement or not, and an instruction of the National Copyright Administration on this problem for the following.
Introduction to the Case:
No.: 26[2003] of the National Copyright Administration (文号：国权办[2003]26号)
The Municipal Copyright Bureau of Hangzhou received a complaint from Hangzhou XX Computer Embroidering Machine Factory, claiming that its software of Sock Machine Computer Control System V6.0 (No. 0007573 of Registration for Software Copyright) had been unlocked and copied by XX Computer Control Equipment Factory, and that has constituted an infringement. However, even though there are two major identical software, XX Computer Control Equipment Factory argued that the software with a finite expression method cannot under legal protection. Considering that Hangzhou XX Computer Embroidering Machine Factory had already obtained a No. 003182 computer software copyright registration certificate for its Sock Machine Computer Control System V1.0, and that it is difficult to judge whether the major “finite expression methods” in this case exists or not, the Municipal Copyright Bureau of Hangzhou are asking for instruction.
The National Copyright Administration gives its instructions as follows upon this case:
Pursuant to Article 29 of the Regulations on Computer Software Protection, the similar or identical software does not constitute copyright infringement if the available expression methods are finite. But the similar or identical software shall be a work produced respectively and independently, and shall not be a plagiarized or copied one of others’. In a dispute of software copyright, if the accused party claims “finite expression methods” in his defense, he shall undertake the burden of proof that the available expression methods are indeed finite; if he fails to do so, he shall bear the corresponding liability of infringement.
Lawyers’ Comment:
1. Standard of software infringement
The principle of judging a computer software infringement primarily involves “materially similarity” and “contact”. This means, on the premise of materially similarity for the two computer software, if evidences prove the defendant to contact, or possible come into contact with this software, generally the defendant may be constituted an infringement.
With regard to “materially similarity”, whatever administrative or judicial law enforcement may make a comparison from all aspects on the two disputed software, such as comparison between the file catalogs and file names, comparison among file names, file length, file establishment or revision time and file attribute, and that the most important one is program code comparison. After comparison, if the two disputed software have a materially similarity of source program, generally, the two disputed software constitute similarity, thus existing an infringement.
2. The accused party truly can raise defenses with an excuse of finite expression.
Generally, the accused party shall bear the legal liability if the accused infringing software constitutes materially similarity to that of the accusing party and if the accused party fails to prove the legal source of the software. Pursuant to Article 29 of the Regulations on Computer Software Protection, the development of a piece of software which is similar to a pre-existing one due to a limit of alternative forms of expression does not constitute an infringement of the copyright in the pre-existing one.
In this case, considering the accused software had already been determined constituting major similarity by relevant administrations, even though there may be similarity through finite expression methods, the accused party may not exempt his liability of infringement upon this similar part. Because, just like the instructions of the National Copyright Administration regulated, the similar or identical software does not constitute copyright infringement if the available expression methods are finite. But the similar or identical software shall be a work produced respectively and independently, and shall not be a plagiarized or copied one of others’.
Lawyer Contacts
You Yunting：86-21-52134918 youyunting@debund.com/yytbest@gmail.com
Disclaimer of Bridge IP Law Commentary
Short Link: