intellectual property is the right that people enjoy according to law for their intellectual labor achievements, and it is an intangible property. Intellectual property rights include patent right, trademark right, copyright (also known as copyright) and exclusive right to trade secrets, among which patent right and trademark right are collectively referred to as "industrial property rights". With the progress of science and technology, the extension of intellectual property rights is constantly expanding.
Software intellectual property rights are the legal rights that computer software personnel enjoy for their own R&D achievements. Because software belongs to the high-tech category, the international laws on the protection of software intellectual property rights are not perfect at present. Most countries protect software intellectual property rights through copyright law, and software design principles closely related to hardware can also apply for patent protection. Ii. legal application of software intellectual property rights
1) copyright of works: documents, programs or other media in research and development achievements are regarded as works and protected by copyright law;
2) Design patent right: the engineering technology and technical design scheme at the application end can apply for patent protection;
3) Formal expression of trademark rights: intellectual achievements expressed in the form of product names and software interfaces can apply for trademark protection. Ii. what is copyright
copyright, also known as copyright, refers to the rights enjoyed by authors of literary, artistic and scientific works to their works.
Copyright includes the following personal rights and property rights:
1) the right of invention, that is, the right to decide whether a work is made public;
2) the right of signature, that is, the right to show the identity of the author and sign his name on the work;
3) the right to modify, that is, the right to modify or authorize others to modify the work;
4) the right to protect the integrity of the work, that is, the right to protect the work from distortion and tampering;
5) The right to use and receive remuneration, that is, the right to use a work by means of copying, performing, playing, exhibiting, distributing, filming, television, video recording or adaptation, translation, annotation and editing; And the right to license others to use the work in the above way and get paid for it. Iv. about software copyright
at present, most countries adopt copyright law to protect software, and regard software including programs and documents as a work. But in fact, the protection of software is a comprehensive protection, which can also be protected by different methods such as patent law, contract law, trademark law and anti-unfair competition law.
China citizens and organizations enjoy the copyright of the software they have developed, regardless of whether it is published or not, regardless of where it is published or whether it is registered. According to the WTO rules, the copyrights between the agreement countries are mutually recognized.
Considering the particularity of software works, the State Council has formulated the Regulations on the Protection of Computer Software according to the Copyright Law of the People's Republic of China, and the main basis for the protection of software copyright is the Regulations on the Protection of Computer Software.
Software copyright registration is not a necessary condition for software copyright protection, but in case of copyright disputes, copyright registration Materials is legally recognized. V. Main contents of software copyright
Software copyright includes personal rights and property rights, which are the exclusive rights granted by law to software copyright. Personal rights refer to the right of publication and the right of developer identity; Property right refers to the right to use, the right to use license, the right to get remuneration and the right to transfer.
right of publication: the right to decide whether the software is made public;
developer's identity right: that is, the right to show the developer's identity and the right to sign his name on his software;
right to use: that is, the right to use its software by copying, displaying, distributing, modifying, translating, annotating, etc. without harming the interests of the public;
the right to use the license and the right to get paid, that is, the right to license others to use their software in part or in whole in the way specified in item (3) of this article and the right to get paid for it;
the right of transfer means that the obligee transfers the right to use, the right to use and the right to receive remuneration to others at the same time, that is, all the property rights are transferred to others. VI. Significance of Software Copyright Protection
Software development needs a lot of intellectual and financial investment. Software itself is the crystallization of high wisdom, and like tangible property, it should also be protected by law, so as to improve the enthusiasm and creativity of developers, promote the development of software industry, and thus promote the progress of human civilization.
it is the intention of the government and the wish of software enterprises to crack down on infringement and piracy, protect software intellectual property rights and establish a good market environment that respects knowledge and intellectual property rights, which will be related to the development of software industry and the survival of software enterprises. VII. Protection level of software copyright
1) Original software (general protection)
2) *** Enjoy software
A, * * * Enjoy software is a free trial software for a fixed period.
(1) main distribution channels of * * * software
(1) distribution through trade fairs
(2) distribution through bulletin board web pages
(2) content of * * * software
*** software has all or some functions; The source code is usually not included in the software program.
provisions on the protection of * * * exclusive software
(1) Free trial for a fixed period
* * exclusive software usually includes a "reaadme" file or an open menu indicating that this software is * * * exclusive software and a statement on how and where to remit money. During the period agreed in the statement, users can try the software for free.
(2) Buy the right to use or stop using after the trial period expires
Some * * * software automatically locks the software function after the trial period ends; Others are not protected by expired locks. In any case, continuing the "trial" after the probation period infringes the rights and interests of the copyright owner.
(3) Trial only
(1) During the trial period (without the permission of the copyright owner), it is illegal for * * * to develop new applications for software.
② Many computer books come with * * * exclusive software disks, which are only a part of the distribution system of * * * exclusive software. Buying books does not mean buying the attached * * * exclusive software.
(4) It is forbidden to distribute for profit
Trial users are not allowed to make profits by copying and distributing * * * software.
3) Free software
A. Free software is a kind of weakly protected software that is distributed and used for free.
the distribution of free software is similar to that of * * *.
B. Provisions on the Protection of Free Software
(1) Guidelines for "Thinking of Drinking Water"
Any development and application originated from free software by users must also be regarded as free software.
(2) Prohibition of profit-making distribution
Non-copyright owners may not make profits by copying and distributing free software.
4) public domain software
A, public domain software
Public domain software, also known as free software, is a kind of software that has been explicitly abandoned by the copyright owner and can be freely used by anyone.
(1) it is allowed to gain economic benefits by copying and distributing free software
(2) the property right of the secondary development results of free software belongs to the secondary developer
(3) the developer owns the ownership of the application results based on free software
B, with special provisions
(1) It is generally believed that the copyright owner of the original free software has not given up the personal rights of the works.
(2) Except for the developer's identity right, all rights of the software enter the public domain before the expiration of the protection period: VIII. Protection period of software copyright
The protection period of software copyright is 25 years, ending on December 31st of the 25th year after the first publication of the software. Before the expiration of the protection period, the software copyright owner may apply to the software registration authority for extension of 25 years, but the longest protection period shall not exceed 5 years. The term of protection of the developer's identity right of software developers is not limited. Ix. software copyright owner
software copyright owner: units and citizens who enjoy copyright in software.
in general, the software copyright belongs to the software developer. A software developer usually refers to a legal person or an unincorporated unit that carries out actual organization and development work, provides working conditions to complete software development, and assumes responsibility for software; It can also be a citizen who relies on his own conditions to complete software development and take responsibility for the software.
1. Cooperative development: developers * * * enjoy the same (except for contracts and agreements)
(1) Separable: enjoy the rights alone; The exercise shall not infringe upon the overall copyright;
(2) Indivisible: developers exercise their rights by consensus.
2. Entrusted development: both parties have agreed in the contract. If there is no limited contract, the rights shall be owned by the developer (the trustee); The tasks assigned by the higher authorities or the government shall be handled according to the same situation.
the copyright of software job works belongs to the unit. X. License for the use of software copyright
1. License for use
Because the object of intellectual property protection is an intangible property, it can be possessed by most people at the same time. Legally, the principle of "one thing, one right" embodies the use license in the field of intellectual property rights.
the so-called software license refers to an agreement between the software owner and the software user to determine the rights and obligations of both parties through an agreement. According to this agreement, the user does not have ownership, but can use the software product at the time and place agreed in the agreement and in the agreed way.
Software license is different from software right transfer, and there is no transfer of copyright or change of copyright owner.
2. Types of license
According to the difference of the right of use and exclusivity granted by the licensed use, it can be divided into three types:
(1) Exclusive license: the right holder is authorized by a written contract, and the licensee can determine the exclusivity according to the way, conditions and time stipulated in the contract. The right holder may not grant the right to use the software to a third party, and the right holder himself may not use the software;
(2) exclusive use license: the right holder is authorized by a written contract, and the licensee can determine the exclusivity according to the way, conditions and time stipulated in the contract. The right holder may not grant the right to use the software to a third party, and the right holder may use the software himself;
(3) general use license: the right holder is authorized by a written contract, and the licensee can determine the exclusivity according to the way, conditions and time stipulated in the contract. The right holder can grant the right to use the software to a third party, and the right holder can also use the software himself. XI. Features of Software License
Equipment and environment for using the software
(1) Single-machine license
Usually, what you get by buying a set of software in the market is only the license to install the software on one computer, which can only be installed on one machine. Except those installed on the server.
(2) Site use license
means that the software copyright owner permits all computers in a specific site to use its software. A venue license may include preferential prices for multiple copies of software or allow countless copies of a specific software; The license fee may be adjusted according to the number of nodes in the network or the number of file servers. When a company has many computers, it needs to buy a lot of software if it adopts a stand-alone license, and it is much more economical to obtain a site license. However, you must contact the software copyright owner directly to obtain the site license.
(3) printing equipment
Some printing software, such as fonts or fonts, can be installed on the computer or integrated into the chip of the printer. Therefore, there are two ways to license such software, one is based on the license of the computer, and the other is based on the license of the printer. At present, Chinese font software is installed in Chinese printer.
Computer-based license means that all computers that install this kind of software need to obtain license; Printer-based license means that a license allows software to be installed on all computers that use this printer.
2. About the licensee
(1) Single license
Single license means that the licensed software can only be used by a specific person. People here can be natural persons or legal persons.
a company (legal person) can apply for a single (bit) license, which is similar to a venue license. If a company has multiple office locations, it is more appropriate to use a single (bit) license.
usually, after obtaining the permission of the company, the company can use the software without restriction, but its conditions of use generally need to be renewed every year.
(2) Multi-user
is divided into network license, parallel license and open license.
Network license is determined according to the number of computers that can use the software under the network environment.
Parallel license is determined according to the maximum number of computers that may use the software at the same time under the network environment.
Open license means that the number of licenses issued by software copyright owners to users exceeds the number of installation carriers provided by them. For example, provide a set of information and issue ten use licenses.
3. About the protected object
(1) Bundled
Bundled sales means that the software copyright owner combines some programs into a program group to package and sell, and this kind of software is not allowed to be installed and used separately. Commonly used office software generally includes text, forms, demonstrations and other processing software, and different combinations include personal user version, enterprise version and so on. Sometimes two independently packaged products will be combined and absorbed, such as WPS office+Kingsoft Internet Security. This situation depends on whether there is an agreement in advance. If there is no agreement, it can be understood as product promotion and does not belong to bundled sales.
(2)*** Enjoy software
* * Enjoy software is a kind of software that the software copyright owner distributes to users or the public free of charge through trade fairs, bulletin boards, etc. This kind of software often has some or all functions of the official version of the software. Users can familiarize themselves with its usage methods or functions by using this software, but there may be a time limit.
you need to pay for * * * software. In the introduction file or menu of * * * software, it is usually indicated that the software is * * * software and payment instructions.
(3) Free software
Free software is a kind of free distribution software that does not need to pay the license fee. The distribution method is roughly the same as that of * * * software, but the end user does not need to pay the fee, and the source code of free software is usually open, such as LINUX. Free software cannot be distributed for profit, and any secondary application development based on free software must be regarded as free software.
(4) Version upgrade
Usually, the functions of a software are constantly improving and improving, and its external performance is the continuous upgrade of the version. Generally speaking, the higher the version number, the stronger the function of the software. In order to obtain the updated version of the software, users can directly purchase a complete and independent updated version of the software (full version) or an upgraded version of the old version.
full version: you can continue to use the previous version; That is, you can use the old and new sets.
upgrade: you only have one set of software licenses, and you can only use the new one or the old one.
in general, the purchase of software does not include free version upgrade; Sometimes, in order to protect the rights and interests of users, for example, on the eve of the launch of a new version, the copyright owner will promise to give free software upgrade services for a certain period of time or a certain number of times.
There are also some softwares, such as antivirus software, for which the copyright owner will provide data update services.
XII. restrictions on software copyright
1. fair use
it is not necessary to use other people's protected works under certain conditions.