Give you some knowledge about software intellectual property rights, I hope it will help you!
Software intellectual property is the right that computer software personnel enjoy according to law for their own research and development achievements. Because software belongs to the high-tech category, the current international laws on software intellectual property protection are not perfect. Most countries protect software intellectual property rights through copyright law, and software design principles closely related to hardware can also apply for patent protection.
1. What is intellectual property?
Intellectual property is an intangible property that people enjoy according to law for the fruits of their intellectual labor. Intellectual property rights include patent rights, trademark rights, copyright (also known as copyright) and the exclusive right to use trade secrets, among which patent rights and trademark rights 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 is the right that computer software personnel enjoy according to law for their own research and development achievements. Because software belongs to the high-tech category, the current international laws on software intellectual property protection are not perfect. Most countries protect software intellectual property rights through copyright law, and software design principles closely related to hardware can also apply for patent protection.
Second, the 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: you can apply for patent protection for engineering technology and technical design scheme at the application end;
3) Trademark right in form: intellectual achievements in the form of product name and software interface can apply for trademark protection.
Third, what is copyright?
Copyright, also known as copyright, refers to the rights enjoyed by authors of literary, artistic and scientific works.
Copyright includes the following personal rights and property rights:
1) the right to publish, that is, the right to decide whether the work is open or not;
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 the right to receive remuneration, that is, the right to use a work by means of reproduction, performance, broadcasting, exhibition, distribution, filming, adaptation, translation, annotation and editing; And the right to license others to use the work in the above way and get paid.
Four, about the software copyright
At present, most countries adopt copyright law to protect software, and regard software including programs and documents as works. But in fact, the protection of software is a comprehensive protection, and it can also be protected by different methods such as patent law, contract law, trademark law and anti-unfair competition law.
Chinese citizens and units enjoy the copyright of the software they have developed, regardless of whether the software is published or not, regardless of where it is published or whether it is registered. According to the rules of WTO, 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 People's Republic of China (PRC), and the main basis of software copyright protection is the Regulations on the Protection of Computer Software.
Software copyright registration is not a necessary condition for software copyright protection, but in the event of copyright disputes, copyright registration materials are legally recognized.
Verb (abbreviation of verb) is the main content of software copyright.
Software copyright, including personal rights and property rights, is an exclusive right given to software copyright by law. 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 license, the right to receive remuneration and the right to transfer.
Right of publication: the right to decide whether the software is open or not;
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 public interests;
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;
The right of transfer means that the obligee transfers the right of use, license and remuneration to others at the same time, that is, all property rights are transferred to others.
Sixth, the significance of software copyright protection.
Software development needs a lot of intelligence and capital 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 promote the progress of human civilization.
Combating infringement and piracy, protecting software intellectual property rights and establishing a good market environment that respects knowledge and intellectual property rights will be related to the development of software industry and the survival of software enterprises, which is the intention of the government and the wish of software enterprises.
Seven. Protection level of software copyright
1) original software (general protection)
2)*** Enjoy the software
I * * * * enjoy software is a free regular trial software.
(1) * * Enjoy the main distribution channels of software.
(1) is distributed through the fair.
(2) Distribution through the bulletin board webpage.
(3) From one trial to another.
(2) * * * Enjoy the content of the software.
* * * Enjoy all or part of the functions of the software; Source code is usually not included in software programs.
B, * * * enjoy the software protection regulations
(1) Free trial for a fixed period.
* * * Software usually includes a "reaadme" file or an open menu, indicating that the software is * * * software, and explaining how and where to remit money. Users can try the software for free within the time limit stipulated in the statement.
(2) Purchase the right to use or stop using after the probation period expires.
Some * * * software automatically locks the software function after the probation period; Others are not protected by expired locks. In any case, continuing to "try out" after the probation period violates the rights and interests of the copyright owner.
(3) Trial only
During the probation period (without the permission of the copyright owner), it is illegal to develop new applications for * * * software.
(2) Many computer books have their own * * * exclusive software disks, which are only a part of the * * * exclusive software distribution system. Buying a book does not mean buying the accompanying exclusive software.
(4) Forbid profit distribution.
Trial users shall not profit from copying and distributing the software.
3) Free software
A, free software is a kind of weak protection software that is distributed and used for free.
The distribution of free software is similar to that of software.
B, free software protection regulations
(1) the principle of "thinking about drinking water sources"
Any user-developed application derived from free software must also be regarded as free software.
(2) Forbid profit distribution.
Non-copyright owners may not profit from copying and distributing free software.
4) Public domain software
I. 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 used freely by anyone.
(1) allows you to obtain economic benefits by copying and distributing free software.
⑵ The property rights of the secondary development results of free software belong to the secondary developers.
⑶ For the application development based on free software, the developer owns the ownership of the application results.
B, special provisions
It is generally believed that the copyright owner of the original free software did not give up the personal rights of the work.
(2) Anyone who meets one of the following conditions, except the developer's identity right, shall enter the public domain before the expiration of the protection period:
Eight, the software copyright protection period
The copyright protection period of the software is 25 years, ending on1February 3 1 day 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 an extension of 25 years, but the longest protection period shall not exceed 50 years. The term of protection of software developers' developer identity right is not limited.
Nine, the software copyright owner
Software copyright owner: units and citizens who enjoy software copyright.
Generally speaking, the software copyright belongs to the software developer. Software developers usually refer to legal persons or non-legal entities that actually organize and develop, provide working conditions to complete software development, and take responsibility for software; They can also be citizens who rely on their own conditions to complete software development and take responsibility for the software.
1. Cooperative development: shared by developers (except contracts and agreements).
(1) can be divided into: exclusive rights; The exercise shall not infringe the whole copyright;
(2) Indivisible: The developer exercises his rights through consensus.
2. Entrusted development: both parties agree in the contract. If there is no limited contract, the right belongs to the developer (trustee); The tasks assigned by the higher authorities or the government shall be handled in the same way.
The copyright of software job works belongs to the unit.
X. Software copyright license
1, license
Because the object of intellectual property protection is an intangible property, which 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.
The so-called software license refers to the agreement between the software owner and the software user to determine the rights and obligations of both parties through the agreement. According to this agreement, users do not have ownership, but can use the software products 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. License type
According to the different use rights and exclusivity granted by licensed use, it can be divided into three types:
(1) Exclusive use license: The obligee authorizes it through a written contract, and the licensee can determine exclusivity according to the way, conditions and time agreed in the contract. The obligee shall not grant the right to use the software to a third party or use the software by himself;
(2) Exclusive license: The obligee authorizes the software through a written contract, and the licensee can determine exclusivity according to the way, conditions and time stipulated in the contract. The obligee may not grant the right to use the software to a third party, and the obligee may use the software by himself.
(3) General use license: the obligee authorizes it in the form of a written contract, and the licensee can determine exclusivity according to the way, conditions and time agreed in the contract. The right holder may grant the right to use the software to a third party, or the right holder may use the software himself.
XI。 Characteristics of software licensing
Equipment and environment for using software
(1) stand-alone license
Usually when you buy a set of software in the market, you get a license to install the software on a computer. A license that can only be installed on one computer is a stand-alone license. Except those installed on the server.
(2) Site use permit
This means that the software copyright owner allows all computers in a specific site to use their software. Venue licenses may include preferential prices for multiple copies of software or allow countless copies of a particular software; The license fee can be adjusted according to the number of nodes or file servers in the network. When a company has many computers, it needs to buy a lot of software if it adopts single-machine license, and it is much more economical to obtain 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. So there are two ways to license this kind of software, one is based on computer license, and the other is based on printer license. At present, Chinese font software is installed in Chinese printers.
Computer-based license means that all computers that install such software need to obtain a license; A printer-based license means that the license allows software to be installed on all computers that use the printer.
2. About the Licensee
(1) single license
Single license means that licensed software can only be used by specific people. People here can be natural persons or legal persons.
Units (legal persons) can apply for a single (bit) permit, which is somewhat similar to the venue permit. If a unit has multiple office locations, it is more appropriate to use a single (bit) license.
Usually, after obtaining the company's permission, the company can use the software without restrictions, but its conditions of use generally need to be updated every year.
(2) Multi-users
It is divided into network license, parallel license and open license.
Network license, in the network environment, is determined according to the number of computers that can use the software.
In the network environment, the parallel license is determined according to the maximum number of computers that can use the software at the same time.
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) binding type
Bundle sale means that the software copyright owner combines some programs into program groups for package sale, and this kind of software is not allowed to be installed and used separately. Commonly used office software generally includes text, forms, presentations and other processing software, and different combinations include personal user version, enterprise version and so on. Sometimes two independently packaged products will be merged and absorbed, such as WPSoffice 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 the software
* * * Enjoy software is a kind of software released by software copyright owners to users or the public free of charge through trade fairs and bulletin boards. This kind of software often has some or all functions of the official version of the software. Users can familiarize themselves with the use method or function of the software by using it, but there may be a time limit.
You need to pay for * * * software. In the introduction document 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 a license fee. The distribution method is roughly the same as that of * * * software, but the end user does not need to pay the fee. 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 function of a software is constantly improving and perfecting, and the 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 the complete and independent updated version (full version) or the upgraded version of the old version.
Full version: you can continue to use the previous version; That is, both old and new sets can be used.
Upgrade: You only have one set of software licenses, and you can only use new or old ones.
Generally speaking, purchasing 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 software, such as antivirus software, and the copyright party will provide data update services.
Twelve. Restrictions on software copyright
1, reasonable use
According to the law, under certain conditions, you can use other people's protected works without the consent of the copyright owner and without paying him remuneration.
(1) Units and citizens who legally hold software copies may, without the consent of the copyright owner:
* according to the need to use software to enter the computer;
* Make backups for archiving, but these backups shall not be provided to others for use in any way. Once the owner loses the legal ownership of the software, these backup copies must be destroyed; .
* Make necessary modifications in order to use the software in the actual computer application environment or improve its functional performance, but unless otherwise agreed, the modified text shall not be provided to any third party without the consent of the software copyright owner or its legal transferee.
(2) If it is necessary to copy a small amount of software for non-commercial purposes such as classroom teaching, scientific research and official duties of state organs, no remuneration may be paid to the software copyright owner or his legal transferee without his consent. However, the name and developer of the software shall be clearly stated when using it, and other rights enjoyed by the copyright owner or his legal transferee in accordance with these regulations shall not be infringed. Copies shall be properly kept, recovered or destroyed after use, and shall not be used for other purposes or provided to others.
Classroom teaching generally refers to face-to-face classroom teaching within the scope of teachers; Scientific research generally refers to non-commercial scientific research; When a state organ performs official duties, it only refers to the specific behavior of copying the client's software to perform official duties in the process of investigation and evidence collection. It doesn't mean that a state organ can copy other people's computer software at will in general office activities.
2. Legal permission
Refers to the law that under certain conditions, a work protected by copyright can be used without the permission of the copyright owner, but the remuneration should be paid according to the regulations.
13. What rights do software users have?
Units and citizens who legally hold software copies may enjoy the following rights without the consent of the software copyright owner:
(1) Load the software into the computer as needed;
(2) Make backup copies for archiving. However, these backup copies shall not be provided to others for use in any way.
(3) Make necessary modifications in order to use the software in the actual computer application environment or improve its functional performance. However, unless otherwise agreed, the modified text shall not be provided to any third party without the consent of the software copyright owner or its legal transferee.
If a small amount of copied software is used for non-commercial purposes such as classroom teaching, scientific research and official business of state organs. Without the consent of the software copyright owner or his legal transferee, no remuneration may be paid to him. However, the name and developer of the software should be clearly stated when using it.
14. Why do computer software need copyright registration?
The developer of computer software enjoys copyright no matter whether the software is published or not, and registering the software copyright with the software registration authority is the premise of administrative handling or litigation of software rights disputes. The registration certificate issued by the software registration authority is the preliminary proof that the software copyright is valid or the facts stated in the registration application documents are true. Therefore, the benefits of software copyright registration are:
1) Strong evidence to help obligees claim their rights in case of disputes;
2) Assist the judicial organs to obtain evidence conveniently and quickly, so as to close the case quickly;
3) Cooperate with government agencies to implement management and promote the development of software industry, and enterprises can also enjoy tax-free treatment; Sell your own knowledge.
Fifteen, software piracy
Any act of copying and spreading the software without the permission of the software copyright owner, or spreading, selling and using the software in other ways beyond the scope of permission, is software piracy. Piracy is an act of infringing the property rights of software copyright owners protected by relevant intellectual property laws.
The nature of computer software determines the easy copying of the software. Every end user, even a beginner, can accurately copy software from one computer and install it on another computer. This process is simple, but it is not necessarily legal. Except for backup, any software copying is against the copyright law.
Sixteen, the main forms of software piracy
(1) end-user piracy
When an enterprise or organization ("end-user") uses pirated software or copies the software without authorization, it belongs to end-user software piracy and constitutes infringement.
End-user software piracy has the following forms:
* Running other people's software on one or more computers without the permission of the software license agreement;
* Copy disks not for archiving, but for reinstallation and distribution;
* There is no legal version that can be upgraded, but the upgrade opportunity is taken advantage of;
* Use the obtained non-retail software for educational purposes or other restricted purposes, and the license agreement stipulates that it cannot be sold to or used by the unit;
* Exchange software disks inside and outside the workplace.
Please note that the fact that a user has purchased a set of genuine software does not mean that he can install and run the software on two or more computers, which depends on the rights granted to him by the software license agreement; Under normal circumstances, the license of genuine software can only be installed and used on one computer.
(2) Purchase hardware pre-installed software
In order to make the computer hardware they sell more attractive, computer hardware dealers often pre-install unauthorized software on their computers, which is called "hardware pre-installation". The behavior of "hard disk pre-installation" generally appears in hardware manufacturers, but it also exists in some computer manufacturers, system integrators and independent software developers.
If a computer vendor installs the software into the computer hard disk without the authorization of the genuine software manufacturer in order to attract customers to buy its computer products, this behavior constitutes an infringement on the software copyright owner. In this case, the user also needs to bear the tort liability, unless the user has enough evidence to prove that he also bought genuine software when purchasing hardware. Therefore, if the computer sold by the computer sales office is pre-installed, the user should ask the computer seller for the software license agreement, the original CD, the user manual and other related documents and receipts.
(3) software abuse caused by client-server connection.
By connecting multiple computers in the form of client-server, users can call the existing software in the LAN. The license of server software generally has a clear limit on the number of server users, or requires users to obtain the calling permission separately. Because the end user of the client does not copy the software directly in form, but uses it beyond the scope of license, this form of infringement needs to arouse the vigilance of the unit users to avoid the occurrence of infringement.
(4) pirated software CDs
Imitation is to imitate copyrighted software works and illegally copy and sell them.
For software packages, you can often find pirated CDs or disks with software programs, as well as related software packages, manuals, license agreements, labels, registration cards and anti-theft passwords. For consumers, you can pay attention to the following points to prevent the purchase of counterfeit products by mistake:
* Carefully check the authenticity of products when purchasing;
* Buy from an honest and trustworthy dealer;
* Confirm that the software contains all user materials and license agreements at the time of purchase.
The department authorized to purchase software should know that counterfeit software usually has the following information:
* The price of software is greatly discounted, which is incredibly low;
* The software is released in the form of a CD-ROM encyclopedia, without the materials and packaging of general legal products;
* The software has no manufacturer's standard anti-counterfeiting logo;
* The software is not attached to the original license agreement or other materials (such as user registration cards or manuals) of general legal products;
* The package or attached materials of the software are copies or the printing quality is poor;
* The color of the CD is gold (burned from a reproducible CD), while the genuine software CD is characterized by silvery white (read-only CD);
* CD-ROMs contain software from multiple manufacturers or programs that are not usually sold as "software packages";
* Software is distributed by distributors, who cannot provide proper guarantee for legal products by mail order or online.
(5) Internet online software piracy
With the popularity of the Internet, online software plagiarism is becoming more and more common. Criminals often advertise on Internet websites and sell pirated software. In addition, they often upload unauthorized software to the network for network users to download from the Internet. It is also illegal for users to download and use such software.
Some * * * software is allowed to be downloaded for trial use, but after a certain time or number of times, you will have to pay.
17. Legal liability for infringement.
In case of infringement, the user will bear the following responsibilities depending on the seriousness of the case:
1. Civil liability: including stopping the infringement, eliminating the influence, publicly apologizing, and compensating for losses, etc.
2. Administrative responsibilities: including ordering to stop making and distributing infringing copies, confiscating illegal income, confiscating infringing copies and production equipment, and imposing a maximum fine of 65,438+10,000 yuan or 5 times the total price;
3. Criminal responsibility: if the amount of illegal income from copying and selling infringing products is relatively large, which constitutes a crime, it shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention and a fine or a single fine; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years or fixed-term imprisonment of not less than two years but not more than five years, and shall also be fined; If a unit commits a crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished.
Eighteen, how to avoid using pirated software
1. Provide genuine software to employees.
The unit must first provide employees with genuine software, which is the key to the problem. To this end, the following measures need to be taken:
Estimate the software requirements of the unit;
Establish a corresponding software statistics table for each computer, listing the existing and future needed software in the machine;
Provide genuine software to meet the requirements of statistical tables of each machine;
Make a reasonable budget for software;
Provide the required software to employees in time;
Reasonably estimate the needs of employees, make plans in advance, and meet the needs of employees.
2. Prevent copying and using unauthorized software.
The unit should also take various measures to prevent employees from using pirated software, so as not to bring unnecessary trouble to the unit:
. Ensure the timely provision of genuine software;
Adhere to the use of genuine software and educate employees extensively;
Designate a person to be responsible for the rational use of the software;
Register the purchase of software;
Regularly check the hard disks of all computers in the company to ensure that all programs are genuine;
Correcting and punishing employees' piracy.