Before the registration of software copyright, the provisions of laws/regulations are more for the convenience of government administration, so they have the color of mandatory administrative orders. Software copyright registration needs to pay a certain registration fee, and the registration procedures are still cumbersome. Now copyright registration is not mandatory, but it still has certain practical significance. The author of this article still suggests registration for the following reasons:
1, as the basis of software protection.
Article 32 of the Notice of the State Council on Printing and Distributing Policies to Encourage the Development of Software Industry and Integrated Circuit Industry stipulates: "The copyright administrative department of the State Council shall standardize and strengthen the software copyright registration system, encourage the software copyright registration, and give priority protection to the registered software in accordance with national laws."
2, as the basis of tax incentives.
The Ministry of Finance and State Taxation Administration of The People's Republic of China's Notice on Tax Issues Concerning the Implementation of the Decisions of the Central Committee and the State Council on Strengthening Technological Innovation, Developing Hi-tech and Realizing Industrialization has made detailed provisions on tax incentives for software products. The notice does not require compulsory registration, but stipulates: "Business tax is levied on computer software registered by the National Copyright Administration and its copyright and ownership are transferred at the time of sale, and value-added tax is not levied."
3. As a technology investment.
The Provisions on Several Issues Concerning the Share-holding of High-tech Achievements stipulates that computer software can be used as a high-tech share, and the pricing ratio can exceed the limit of 20% to 35% in the Company Law. Now some places even stipulate that software can be priced at 100% with technology as its capital contribution. However, software copyright is generally required to be registered.
4, as the basis for applying for scientific and technological achievements.
Article 8 of the Notice of the Ministry of Science and Technology on Printing and Distributing the Measures for the Registration of Scientific and Technological Achievements stipulates: "To register scientific and technological achievements, the registration form of scientific and technological achievements and the following materials shall be submitted: (1) Applied technological achievements: relevant evaluation certificates (appraisal certificates or appraisal reports, acceptance reports of scientific and technological projects, industry access certificates, new product certificates, etc.). ) and development reports; Or intellectual property certificate (patent certificate, plant variety right certificate, software registration certificate, etc.). ) and user certificates. " Registration here can be understood as the registration of copyright, and other ministries and commissions have similar provisions. To apply for technical achievements with software, a software registration certificate shall be submitted.
In addition, software copyright registration has greater practical significance, that is, it enjoys the role of software copyright certification. Software consists of a series of codes called source code, which can be copied indefinitely. Software copyright protection source code. It is generally believed that whoever holds the source code is the copyright owner. Because the source code can be copied, unlike copying paper materials, the original and copy can be distinguished. If the source code is not strictly confidential, it is difficult to distinguish the copyright owner. If we register the copyright as soon as possible and obtain the software copyright registration certificate, this is the initial proof of rights. In the event of a software copyright dispute, it is quite difficult to prove that the software copyright registration certificate is not the real software copyright owner. In the software copyright transaction, the software copyright registration certificate is conducive to the smooth completion of the transaction.
The software copyright owner may register with the software registration agency recognized by the copyright administrative department of the State Council. The registration certificate issued by the software registration agency is the preliminary proof of the registered items. A license contract for the exclusive exercise of software copyright by others, or a contract for the transfer of software copyright, may also be registered with the software registration agency recognized by the copyright administrative department of the State Council.
China adopts the method of encouraging software registration and giving priority protection to registered software, rather than compulsory software registration. Software registration can be divided into software copyright registration, software copyright exclusive license contract registration and transfer contract registration. The applicant for software copyright registration shall be the software copyright owner, including natural persons, legal persons or other organizations that have obtained copyright through the special provisions of the Regulations and inheritance and transfer. The applicant for the registration of software copyright contract shall be the party to the exclusive license contract and transfer contract of software copyright. If you register your own software without the permission of the software copyright owner, or register other people's software as your own software, or register the software jointly developed with others as your own software without the permission of the cooperator, these acts belong to infringement, and the infringer should bear legal responsibility.
In China, the National Copyright Administration is in charge of the national software copyright registration management, and China Copyright Protection Center is the software registration institution. The software registration documents issued by China Copyright Protection Center are only important written evidence to prove that the registered subject enjoys the software copyright, and conclude the software license contract and transfer contract, but the software registration is not the basis of the software copyright. Because software copyright comes into being from the date of software development, unregistered software copyright or exclusive license contract and transfer contract of software copyright are still protected by law.
But in practice, many software copyright owners, especially domestic software copyright owners, voluntarily choose software copyright registration, because registration will bring many benefits to software copyright owners and judicial administrative organs:
1. After registration, the contents of the registration documents are the registered items, especially the preliminary proof of the ownership relationship. In case of disputes in the future, it is well documented.
2. Facilitate the work of relevant administrative departments. For example, the tax department can use the software registration certificate as the document material to implement the preferential tax policy for software, and the science and technology department can use the registration certificate as the basic material for evaluation and management.
3. This is beneficial to software trade. For example, the software registration certificate is often used as a document for software copyright pledge, and as a document material in property rights transactions involving software copyright investment and transfer.
There is a charge for software registration. The charging standard for software registration shall be stipulated by the copyright administrative department of the State Council in conjunction with the price administrative department of the State Council. China's current computer software copyright registration system is one of the intellectual property protection measures established according to law based on the experience of developed countries, combined with China's specific situation and the technical characteristics of the software industry itself. It is an auxiliary measure of software copyright implemented by the government. Regarding the function and effectiveness of this registration system, scholars and experts believe that the function of the software copyright registration certificate is mainly to "help, assist, cooperate and publicize". The role of "help" means that the legal institution of the country helps the software copyright owner to keep the valid evidence of software copyright and determine, straighten out and adjust the relationship between software development, dissemination and use. Software copyright owners can reduce the burden of proof in software copyright disputes according to the software registration certificate, thus protecting their legitimate rights and interests. The role of "assistance" refers to assisting judicial organs and copyright administrative organs to understand and master the legal relationship and technical status of registered software through registration documents, and to determine the validity of litigation or complaint evidence, so as to judge and deal with software infringement promptly and quickly. "Coordination" refers to the cooperation with the relevant departments of China government to strengthen macro-management and regulation of software industry and application, formulate policies for the development and application of software industry, and promote the dissemination and market circulation of legal software products. For example, China implements preferential tax policies for the software industry, and the tax authorities require software companies to issue software copyright registration certificates when approving tax incentives for software products. The function of publicity is to provide relevant information services to the public. On the one hand, it can effectively avoid repeated development and investment, on the other hand, the public can effectively supervise the software registered by software registrants. After the software copyright is registered, any unit or individual can inquire about the materials submitted for registration in the registration institution. The software copyright registration agency will also regularly announce the registered software copyright to the public.
According to the functions of "help", "assistance", "cooperation" and "publicity" of software registration, it is not difficult to see that only judicial organs can determine the effectiveness of registration certificates in litigation. According to the facts ascertained by the court, Vl.0, an import and export business system for sea-air combined transport, was developed to achieve the development goals stipulated in its work. According to Article199110 of the Regulations on the Protection of Computer Software, which came into effect in 10, the software developed by citizens during their employment in the company is like performing their duties. Article 1 3 of the Regulations on the Protection of Computer Software, which came into effect on June 5438+1October12002, also made the same provision. If the software developed by a natural person during his tenure as a legal person or other organization is under any of the following circumstances, the copyright of the software shall be enjoyed by the legal person or other organization, and the legal person or other organization may reward the natural person who developed the software: ① Software developed for the development goal specified in his own work. (2) The software developed is the foreseeable or natural result of engaging in one's own work activities; (3) Software that is mainly developed by using the funds, special equipment, undisclosed special information and other material and technical conditions of a legal person or other organization and undertaken by the legal person or other organization. After the court finds out the real copyright owner, the probative power of the software copyright registration certificate naturally disappears.