In China software piracy is one of the big problems. What can be done to protect software?
CopyrightSoftware is specifically mentioned in article 3 (8)
Copyright Law as protectable subject matter.
Although copyrights do not have to be registered, since China is a signatory of the Berne Convention the enjoyment and the exercise of copyrights shall not be subject to any formality, according to article 5 (2) of this treaty, it can be wise to register:
- A registration certificate issued by the software registration institution, recognised by the copyright administration department of the State Council, is a preliminary proof of the registered items, see article 7 Regulations on Computers Software Protection;
- Elliot Papageorgiou of Rouse & Co. International gives another argument: Registration and publication of the software and identity of the owner in the copyright bulletin serves as notice to infringers and raises the presumption that the infringer was "knowingly" infringing copyright. If this is the case, the defendent cannot base his claim on article 30 Regulations on Computers Software Protection, that he neither knows nor has reasonable grounds to know that he infringed, in which case the infringer can, after paying reasonable remunaration, continue to use the copies, if the cease or destruction of these would cause heavy losses to him.
Article 29 Regulations on Computers Software Protection gives the limitation that "[t]he 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 other words, if there is only one technical solution possible, it is not copyrightable. Professor Hugenholtz called this (and I paraphrase) the monopoly of suboptimal technical solutions.
Patent
Article 22 Patent Law states: Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical applicability.
- Novelty means that, before the date of filing, no identical invention or utility model has been publicly disclosed in publications in the country or abroad or has been publicly used or made known to the public by any other means in the country, nor has any other person filed previously with the Patent Administration Department Under the State Council an application which described the identical invention or utility model and was published after the said date of filing.
- Inventiveness means that, as compared with the technology existing before the date of filing, the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress.
- Practical applicability means that the invention or utility model can be made or used and can produce effective results.
According to Papageorgiou the requirements that a patent needs to be for the purpose of resolving a technical problem and capable of producing a technical result by technical means are analogous to these requirements stated by article 52 (3) European Patent Convention. However, as Wikipedia's article 'Software patents under the European Patent Convention' makes clear there is a plethora of interpretations. What China's interpretation is I am not sure yet. To be continued.
