The 21st century is truly the era of the IT industry, with now software incapsulating the world in all aspects of our lives.
When companies treat software as intellectual property, they are exercising their rights over the control of the usage of such software and how it may become public. Otherwise, there may be occurrences of usage without permission, losing the right to be paid for the use of the software and in extreme cases, the risk of losing the right to use the software which you created altogether.
This article glances over the vast array of content of intellectual property protection involved in computer software and lists the feasible paths of intellectual property protection.
Generally speaking, a variety of intellectual property rights may exist within one piece of software, therefore there’s an obligation on companies to implement a system of comprehensive protection.
Registering your copyright with the Copyright Office, even though software copyright is protected automatically on the completion of the creation and its registration is not mandatory, is an important step to undertake for legal purposes. It would be highly recommended to register in order to (i) obtain a valid and enforceable title in China to prove the ownership of the work (software) and the priority of its creation and thus (ii) easing the burden of proving the aforesaid aspects in cases of dispute/infringement.
The object of copyright registration for software shall be the programming code and its related description documents, excluding the processing flow, algorithm, operation mode, etc. in the process of software operation, but generally excluding the graphical user interface (this belongs to general copyright or patent protection) generated by the computer code during operation.
For software copyright registration, as long as the form of the material submitted is in line with the requirements and does not violate the provisions of the Copyright Law, registration will be granted without going through a substantive review. Software copyrights can be protected without being publicized and can be granted within a short timeframe, normally within 1-1.5 month.
Copyright law only protects the expression of the work, not the idea of the work, if the same technical solution is implemented by software, as long as the expression is different, there may be no infringement. However, the most valuable part of the software is the algorithm model, organization structure, processing flow and therefore, there are obvious defects in using copyright law to protect computer software.
In view of the deficiency of copyright registration in protecting computer software, trade secret protection can make up for this shortfall, as the object of trade secret protection is the information itself. Whether it is a material carrier with external forms or technical code, it can be protected through trade secrets. Therefore, the “ideas, processes, operation methods or mathematical concepts” of the development software embodied in programs and documents may be protected by trade secrets.
According to the Chinese patent examination guidelines, computer software itself is not the object of a patent, but inventions containing computer programs may apply for patent protection. Only if the computer software is related to a certain technical field, involves at least one technical problem and can also produce a certain technical effect, can the technology containing the computer program obtain patent protection. In practice, this is quite rare and would require a dedicated assessment of the software.
The protected object of a trade secret and an invention patent may overlap and as an invention patent is protected by initially divulging sensitive information to the public in exchange for protection, an applicant needs to distinguish which information in its software programs and documents needs to be protected by trade secrets and which needs to be protected by applying for invention patents.
Software is also a commodity and can also be protected through trademarks. For example, software operation manuals, publicity materials and sales web pages can all be adorned with the company’s trademark. In addition, the computer software trademark can also be embedded into the software program interface, so that when a computer runs the software program, the user can see the trademark displayed in the graphical user interface.
Conclusion:
In addition to the protection of the software through the means outlined above, the stipulation of the intellectual property rights ownership in the contract with the software developers is necessary to avoid further disputes in terms of ownership and related rights and/ or benefit.
We at D’Andrea & Partners Legal Counsel constantly monitor the latest developments in the China IP market. Please feel free to contact us at info@dandreapartners.com for more information.
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