Brief Introduction to Software Copyrighter’ s Right Limitation to Ultimate User

by Luo Yanjie

Under the system of China Copyright Law, what right limitations may come to software owners? And what rights and obligations are enjoyed or taken by the ultimate user and what’s the liability when the infringement occurs? Today we would like to give you the introduction on the issues. There are two main litigations on the PC software, namely the Copyright Law and the Regulations on the Protection of PC Software (the “Regulation”). But according to the latest exposure of the Copyright Law’s revision, the Regulation’s articles have been all regulated in the new drafted law; therefore, it is foreseeable that the Regulation may be abolished once there publicized the new Copyright Law.

I. The right of the owner of genuine software

For the sale and license of the software, due to the lack of the IPR tradition in the local culture, it’s widely misunderstood among the Chinese consumers that he could do anything to the software purchased which at the same time is a genuine one. Actually, through the purchase, the consumer could only get the license to use the software and the property of the storage medium. The software developers have no right to interfere the consumer’s disposal of the medium, like the resale to a third party, while to the unlawful use of the software by the consumer, the developers are entitled to stop the infringement and claim the compensation. The software sale is kind of copyright license in nature, which scope could cover the copy and the use but excludes the right to the modification and broadcast.

But to balance the interests as well as the prevention of the monopoly by the copyrighters, the law is regulating that the ultimate user may enjoy part of the rights even there’re no legal support. By the Regulation, the related rights are mainly the following ones (the ultimate user as the legal owner in the following article includes both the individual users and the companies):

(1) To install the software into the computer or other equipments capable of processing according to the use need;

(2) To make the back-up copy for the prevention of the copy damage. But these copied ones shall not give to others for use, and shall be destroyed when the owner loses the property of the legal copy.

These two rights enable the ultimate user of the repeated installment; however in fact, the general software developer is less likely to limit the installment times, and for this reason it may not effect too much. On the other hand, the online verification is necessary for many software, especially for the anti-virus software and game software, by which the software could only be used on one or several appointed terminals. The limitation is not against the above regulation for the law only permits the copy of the software but not the breakthrough of the maximum licensed users.

(3) To apply the software in the actual PC environment or to revise the software in order to improve its function or performance; But, unless agreed in the contracts, the revised software shall not be transferred to any third party when there’s no written agreement from the copyright owner.

The aforesaid right makes the user have the right of revision in some situations, like the jailbreak of iPhones in practices. (to crack the prevention system of iPhone could enable the installment of the software in addition to the ones in the app store) In USA, the jail break has been permissible by law as kind of legal transformation of the mobile. Although that is not decided by the Chinese domestic judicial interpretations or cases, it shall be legal when jailbreaking Apple’s iOS or rooting Android for the better performance of the mobile with the regulation in the existing laws.

II. Is it illegal for individual user to use pirated software?

The above part is the discussion over the rights enjoyable by the holders of the genuine software, but in real life, there are many pirated softwares which are illegal copies to the genuine ones, and the legality of them shall be judged by its subjects.

(1) The personal use and non-profit purpose shall be within the fair use

Despite the Regulation is mainly for the protection of software works, such works are limited by the Copyright law as kind of works unless no other articles in the law. According to the Copyright Law, “use of a published work for the purposes of the user’s own private study, research or self-entertainment” shall be the fair use and demands no fee or other payments, neither the license from the right owner. And for this reason, although it shall me condemned in moral, it’s legal under the existing laws. Surely, when the individuals using p2p tools like BitTorrent or eMule to download the pirated softwares, the infringement could be established for the uploading is going with the downloading, which could constitute the piracy uploading.

(2) The infringement liability of commercial use

The infringement liability shall be taken when the pirated software is used for the profit purposes. By Article 21 of the Interpretations on Several Issues concerning the Law Application on the Civil Disputes concerning Copyright by the Supreme People’s Court (the “Interpretation”), “the PC user shall take the infringement liability when using the PC software with no license or extra the license scope by the regulations of Paragraph 1 of Article 47 of Copyright Law and Paragraph 1 of Article 24 of Regulations on the Protection of PC Software”. Therefore, the key to the legality determination shall be whether the subject is with the purpose of profit.

It shall be attentive that commercial use in the regulation is a wide legal definition involving the software using by the individual or unit for the purpose of profit, like to use Photoshop as the tool to picture edit for money making, as well as other using by the commercial subjects, even no profits have been brought to the enterprise. Although Chinese company tend to claim the piracy using is the personal conduct of its employees, most courts are not adopting the defense.

Other posts on our website:

  1. How to combat knockoff games in China?
  2. How to protect open source software in China?
  3. How to make the copyright registration in China?
  4. Could the Copyright Safe Replace the System of Copyright Registration?
  5. How to protect personal privacy aginst the invasion of malicious apps?
  6. How to combat knockoff games in China?
  7. How to protect open source software in China?
  8. How to make the copyright registration in China?
  9. Could the Copyright Safe Replace the System of Copyright Registration?

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