(By You Yunting) China’s computer software infringement is very severe. In litigations of cracking down on computer software infringement, however, how to fix infringement evidence is always a real problem for right holders. In practice, there are two means of computer software evidence perseveration: one is evidence preservation taken by the right holder, and the other is applying for the court to take evidence preservation.
Right holders always would like to take pretrial evidence preservation in network software infringement, cases of installing infringing computer software in public places such as Internet bar. As for enterprises that use unauthorized software for commercial use in workplaces, however, in most cases, evidence preservation is taken by the administrative authorities of copyright or people’s courts. At present, China’s administrative organization have involved less and less in software infringement litigation, because the mainstream opinion is that administrative organizations shall handle with the cases involving in infringing public interests whereas software infringement cases regarding as civil disputes between right holders of software and unauthorized users of aforesaid software shall be settled down though civil proceedings. In our today’s post, we would like to introduce some legal ground of software pretrial evidence preservation taken by the people’s courts in China.
I. Rules in Civil Procedural Law
Subjects of starting courts’ evidence preservation include parties in litigation, parties in arbitration, and the people’s court. The people’s court may have the initiative to start evidence preservation concerned ex officio. If it is in pretrial evidence preservation, the parties may apply to the people’s court of the place where the evidence is located or of the domicile of the party against which the application is made, or the people’s court with jurisdiction over the case, to preserve the evidence.
Article 81 of the Civil Procedural Law stipulates: “Where it is likely that evidence may be destroyed, lost or become difficult to obtain later on, a party may apply to the people’s court in the course of the lawsuit for the preservation of the evidence. The people’s court may also take the initiative to preserve such evidence. In the case of an emergency event where it is likely that an evidence may be destroyed, lost or become difficult to obtain later on, an interested party may, prior to instituting a lawsuit or applying for arbitration, apply to the people’s court of the place where the evidence is located or of the domicile of the party against which the application is made, or the competent people’s court with jurisdiction over the case, to preserve the evidence.”
II. Provisions in Copyright Law and Regulations on Computer Software Protection
The provisions in the Copyright law and Regulations on Computer Software Protection mainly stipulate the conditions for pretrial evidence preservation.
Article 51 of the Copyright Law stipulates: “A copyright owner or copyright-related rights holder may, in order to halt infringing conduct, apply to a people’s court for the preservation of evidence prior to the institution of proceedings if such evidence is likely to be destroyed, lost or difficult to obtain at a later stage. The people’s court that accepts such an application must render a ruling within 48 hours. The execution of the preservation of evidence shall commence once the ruling has been made. The people’s court may order the applicant to provide security. If the applicant fails to provide security, his application shall be rejected. If the applicant fails to institute proceedings within 15 days of the date on which the people’s court takes measures for preservation of evidence, the people’s court shall terminate such preservation measures.”
Article 27 of the Regulations on Computer Software Protection stipulates: “In order to prevent infringement, a software copyright owner may, before instituting legal proceedings, apply to a people’s court, in accordance with Article 51 of the Copyright Law of the People’s Republic of China, for evidence preservation where the evidence is likely to be missing, or to be obtained difficultly later.”
III. Judicial Interpretations of the Supreme People’s Court
China Supreme Court has some detailed provisions on litigation preservation of the trademark and of the patent. Relevant judicial interpretation about trademark litigation preservation is the Interpretation of the Supreme People’s Court on the Application of Law for Stopping the Infringement upon the Right to the Exclusive Use of a Registered Trademark and Preserving Evidence before Initiating Litigation while relevant judicial interpretation about patent litigation preservation is in the Certain Provisions of the Supreme People’s Court on Issues Concerning the Application of Law in the Hearing of Patent Dispute Cases. However, software copyright litigation preservation, duration of aforesaid application and specific measures shall solely refer to the principal provisions in the Several Provisions of the Supreme People’s Court on Evidence in Civil Proceedings.
Article 23 of the Several Provisions of the Supreme People’s Court on Evidence in Civil Proceedings stipulates: “Any party who applies for a preservation order relating to evidence pursuant to Article 74 of the Civil Procedure Law shall make the application no later than 7 days prior to the expiration of the time period for producing evidence. Where any party applies for the preservation of evidence, the people’s court may require the applicant party to provide an appropriate guarantee. Where different provisions concerning the pre-trial preservation of evidence exist in other laws or judicial interpretations, such provisions shall prevail.”
Article 24 of the Several Provisions of the Supreme People’s Court on Evidence in Civil Proceedings stipulates: “When preserving evidence, the people’s court may, according to the specific circumstances, adopt preservation methods such as sealing up, detention, taking photographs, making sound recordings or visual recordings, making reproductions, authentication, taking transcripts, etc. When preserving evidence, the people’s court may require the party concerned or the representative thereof to be present at the scene.”