(By Luo Yanjie) Recently, Wind Information Co., Ltd (“Wind Info”), a well-known stock speculation software developer in mainland China, made an official announcement that it would sue its competitor Zhejiang Hexin Tonghuashun (300033) to seek RMB 99.22 million yuan in compensation. According to Wind’s spokesman, “more than ninety-nine percent of its software’s function has been copied by Tonghuashun without any changes, including data, organizational structure, column names, connection mode, index, function, text interpretation, parameters, interface, operation or transfer method, and etc.” At present, the ninety-nine percent figure claimed by the spokesman refers to the interface, operation, or transfer method and database. Even if this claim is true, it is still not certain that Tonghuashun has infringed because the judgment of infringement depends on comparison of the source code of both parties’ software. Today, we would like to share the following information on the protection of software copyrights:

I. The object of computer software protection

According to the Protection Regulations for Computer Software (“Regulations”), the object of computer software protection is its “program and related documents.” The Regulations also stipulate, that “Computer program means a sequence of code-based instructions that can be executed by devices having information processing capacity such as computers in order to achieve a certain result, or a sequence of symbol-based instructions or expressions that can be automatically converted into a sequence of code-based instructions.” This is what we call “source code.” The so-called “documents” means “the written materials and diagrams, such as the program design specifications . . . development, testing results, and operating methods of the program.” That is what we call the manual.

In practice, software infringement generally only involves the source codes because the infringers will modify and rewrite the manual to conceal the infringement. In other words, in software infringement cases, the establishment of infringement usually depends on whether the source codes are the same or similar.

II. Will the computer software not enjoy protection of the Copyright Law due to “expression limit” or “common industry pratice”?

As discussed above, the object of computer software copyright protection is the source code. Generally, however, the main reason the rights holder begins to suspect infringement by others is similarity between the interfaces. In practice, the defendant often argues that the interface is subject to the “expression limit” or “common industry practice” exceptions, i.e. there are only so many ways to express information, and certain ways of expression are so common throughout particular industries that they should not receive exclusive protection. So, when the interface does fall within these categories, does it mean the software cannot be protected? The answer is no.

Because the object of legal protection of computer software is the source code, the essence of whether identical interfaces constitutes infringement is still whether the source codes are the same. Furthermore, because the same interface may have multiple forms of source code, even if the interfaces are the same, there is still the possibility that there is no infringement. But, the reason there is no infringement is not because the interface is falls within expression limit or common industry practice, but rather because of the different source code. For example, in the Korea NCsoft v. Tencent QQ case, because the source codes of the two games were completely different, even though two games were very similar, NCsoft could only prosecute Tencent for artwork copyright infringement. The court thought that the artwork belonged to the common industry practice and rejected NCsoft’s claim.

III. Must computer software infringement be judged through source code comparison?

When hearing software infringement cases, courts mainly review two aspects to decide whether there is infringement: 1) Whether the defendant accessed the software; 2) Whether there is “substantial similarity” between the two items of software. In general, the first point is relatively easy to prove. For example, was defendant on plaintiff’s staff or did defendant take part in the development of plaintiff’s software? As to whether software is substantially similar, the court generally depends on the report issued by an identification organization after its analysis of the two programs.

In practice, the defendant regularly refuses to provide the software source code. This does not, however, mean that the court cannot determine whether the defendant has  infringed. According to the Article 75 of the Supreme People’s Court’s Regulations on Evidence in Civil Litigation:

“A claim that a party is withholding evidence without justified reasons can be presumed to be founded if the other party claims that the evidence is against the interests of the holder.”

Therefore, if the plaintiff provides preliminary evidence, this can preliminarily prove defendant’s infringement and can generally include:

1. The target program is the same or substantially similar;

2. The interface is the same or similar in substance (in the users’ intuitive perception);

3. The documents are the same or substantially similar (e.g. the number and type);

4. The existence of the same bugs.

Therefore, the same software interface does not necessarily cause an inference of infringement. But, if the defendant refuses to provide the source code, it also can be used as the basis for finding infringement.

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You Yunting：86-21-52134918  youyunting@debund.com/yytbest@gmail.com

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