Copyright law protects the limitations of computer software
(I) Copyright law protects the mainstream status of computer software in the mid-to-late 1980s, many countries led by the United States began to revise copyright laws and incorporate computer software into the protection object of copyright law. In December 1980, the United States revised the Copyright Law, which legislatively confirmed that computer software, as a general writing work, belongs to the object of copyright law protection. In 1985, Japan revised its copyright law to protect computer software. On May 14, 1991, the Council of Ministers of the European Community issued the "Legal Protection Directive for Computer Programs", which made detailed provisions on the protection objects, program authors, reverse engineering, special protection measures, etc. As a result, the European Community finally introduced a unified copyright law protection system on the issue of legal protection of computer programs. In April 1994, the World Trade Organization signed the T R I P S Agreement, namely the Trade-Related Intellectual Property Agreement. Article 10, paragraph 1 of the Agreement stipulates that all member states or member regions must protect computer programs as "writing works" referred to in the Berne Convention. The T R I P S Agreement, as one of the basic agreements of W T O, is the first international treaty that clearly stipulates the protection of copyrights for computer software. The agreement laid the foundation for establishing a legal protection system for computer software copyrights around the world, and also marked that the copyright model has dominated the intellectual property protection of computer software. At present, more than 60 countries and regions around the world have adopted copyright laws to protect computer software. Some of these countries adopt traditional copyright laws to protect computer software (such as the United States), some specialize in computer protection regulations under copyright laws (such as China), and some have added special clauses for computer software to the original copyright laws, such as those related countries of the European Community.
(II) Copyright Law Protection Defects in Computer Software Although copyright law protection software has unique advantages, software has important differences from traditional works in many aspects, which makes it impossible for its legal protection issues to be fully incorporated into the field of copyright law. In practice, it is manifested as various defects in the copyright law protection model, which is also the reason why the protection model has been debated so far. Specifically, these defects are mainly reflected in the following aspects. First of all, the scope of protection provided by copyright law is insufficient for software. The expression form of software is both a textual work and a specific computer processing process that solves specific problems. Software is both work-oriented and instrumental, which makes the software contain quite creative technical factors. It is mainly reflected in the conception of software functions and structures during the software development process. Since copyright law only protects the expression of the work and does not protect the ideas, principles, concepts, methods, formulas, algorithms, etc. of the work, for computer software, only the performance of the program's works is protected by copyright law, while program concepts, program skills, etc. that reflect their instrumentality cannot be protected. In fact, the technical design of computer programs, such as the conception of software functions and structures in software development, is often a more important technical achievement than program code, and usually reflects the main creative contributions in software development. These technical factors are the essence of software. In the words of German lawyer GEISSLER, "The protection required by computer software is still a technological creation. From this perspective, the scope of protection of traditional copyright law is too narrow for computer software owners." The second is how to reasonably define the specific scope of the expression form of software works. It is also a difficult issue for the traditional copyright system. Copyright law infringement determination requires the distinction between ideas and expressions, which is very difficult for software works. Because the expression of software works is very similar to their concept, in the process of coded concepts, it is not necessary to have too much creativity, and it is easy to write similar programs based on a specific concept. People call the close relationship between the thought and expression of this program "the mixed nature of thought and expression", which makes it extremely difficult to distinguish the thought and expression of software.
The third is that traditional copyright law protects moral rights and is not conducive to the development of software. There are factors that are unfavorable to the development of software in software copyright protection, which are highlighted in "disclosure" and "modification". On the one hand, computer software (mainly source code) does not have to be disclosed to enjoy copyright protection, and source code is of great significance to the advancement and communication of software technology. On the other hand, the author of the software works has the right to maintain the integrity of the works and does not allow unauthorized modifications by others. Although legal users of the software enjoy a certain right to modify it, they are limited to modifying it for their own needs, and cannot provide the modified software to others for use. Therefore, further improvement of the software is only the privilege of the software owner. Others cannot obtain their own copyrights through modifications without the consent of the rights owner. This is not conducive to the communication and communication of software technology to a certain extent, and increases the cost of software development, thereby adversely affecting the development of software. Fourth, copyright protection only considers preventing copying, and does not protect the use of software at the same time as patent protection. In fact, the right holder cares about the copying of software to prevent the use of unauthorized software. The core value of the software lies in the right to use. In other words, software can only create value for society when used, and the interests of software developers are also realized through the use of software. If only illegal copying is prohibited and illegal use is not prohibited, then the rights of software developers cannot be fully protected. The fifth is the issue of protection period. Traditional copyright law generally provides 50 years for the author's life. Unlike traditional writing works, the existence value of software is its practicality. Since the software is updated very quickly, such a long protection period is unnecessary and can hinder the advancement of technology. Sixth, the infringement sanctions provided by copyright law are too light. The main method of sanctioning for copyright infringement is civil compensation, which rarely involves punishment, which is consistent with the ineffectiveness of ordinary works. However, software replication is extremely easy and has extremely low cost. The instrumentality of the software makes it extremely economic value, and illegal copying and distribution can be said to be a huge profit. Moreover, the software industry is gradually becoming a pillar industry, and infringement of software will seriously affect the economic order, so this punishment is too light and will not play a corresponding role. In addition, the copyright law protection model also has obvious flaws in the software operation interface protection, program module protection, and reasonable use of software. Among these shortcomings, some can be solved by making some adjustments and supplements to the relevant legal content on the premise of complying with the basic principles of copyright law; some cannot be properly resolved in the traditional copyright field. In short, for the special object of software, how to provide sufficient but not excessive protection is really a major problem in copyright law.
Difficulties encountered in patent law in protecting computer software, computer graduation thesis
(I) Discussion on the patentability of computer software Although the copyright protection model of software has gained a dominant position, the disadvantages of the copyright protection model have gradually emerged, and countries have not given up on the patent protection of software. The key to using patented methods to protect computer software lies in the patentability of computer software. From the initial non-patentability to patentability, the understanding of software patent protection has gone through a tortuous process. With the rapid development of the Internet and e-commerce today, with the development of the software industry, in order to strengthen the protection of software rights holders, the patent protection of computer software is showing a continuous expansion. Computer software is a logical entity, not a specific material entity. Its core lies in algorithms, so it has a certain degree of abstraction. At first, software was excluded from patent protection because people equated software with algorithms and believed that it belongs to the rule of intellectual activity. As people deepen their understanding of software tools, software patent protection is gradually put on the agenda. Article 101 of the US Patent Law stipulates that all useful, new, obvious intellectual achievements, whether they are a method, a machine, a product or a combination of all substances, may obtain patents according to law. The US Patent Law protects "everything created by human beings in the sun." It can be seen that the US patent law does not explicitly exclude the possibility of computer software being patented. To solve the patentability of computer software, the following two issues must be clarified: First, the technical characteristics of computer software require software patent protection. The purpose of patent law is to encourage and promote the progress of science and technology. Therefore, the intellectual achievements it protects must be technical, that is, they must use natural rules or natural phenomena. Article 27 of the TRIPS Agreement stipulates: "Any invention in any technical field can be patented." Article 2 of the Japanese Patent Law stipulates: "Inventions are the high level of creation of technical concepts that utilize natural laws." Inventions are technical solutions to solve a specific problem in the technical field using natural rules and natural phenomena. When reviewing an invention and creation, it is first necessary to determine whether it is technical. If you use a patent system to protect software, you must first clarify whether the software belongs to the technical field and whether it is a technical product. On the one hand, the software utilizes natural laws. The core of computer software is algorithms, and algorithms are rules of intellectual activities. The use of software is to use such rules in a specific way and bring certain technical effects through the operation of algorithms; on the other hand, the use of software in combination with computers or other machines is a specific technical solution. The use of software is to obtain certain technical results and solve certain technical problems. Computer software has a certain dependence on hardware. Programs must be implemented by hardware. The entire process of program work is the process of combining software and hardware. For users, software and hardware combine to form a tool-based device. Computer software must be combined with hardware to achieve its purpose of existence. In this sense, software and hardware are organic wholes when completing specific functions, and can be regarded as a special "device" and "product". The software realizes the indirect utilization of natural laws and phenomena, so it has certain technicality. Secondly, the algorithm cannot be completely equated with computer software. In essence, computer software uses language symbols that computer hardware can understand to control hardware and peripherals to achieve certain functions. Algorithms are the syntax of this language and are the core of the software. Specifically, an algorithm refers to a series of processing steps on data, which is a method and process that operates certain data structures to solve certain problems. It belongs to the design concept of a computer program. In form, an abstract algorithm is defined as a pure logic without any material entity, and seems to be merely a "law of nature" or "mathematical formula" and belongs to "rules and methods of intellectual activities", so it is concluded that software does not fall within the scope of patent protection.
(II) It is difficult to realize software patent rights and obtain patents approved by the Patent Office, which does not mean that the patent owner is at ease. In order to truly maintain a patent, it must overcome various legal challenges to the effectiveness of the patent. In most patent infringement cases, the defendant will counterclaim that the patent is invalid, which will cause the patent office to make mistakes or be confused. Sometimes, the court determines that there are more patents that are invalid than the ones it maintains. In this way, accusing others of infringement or preservation of patent rights is often quite dangerous, because the patent itself may have long since expired. In 982, the United States established a federal Circuit Court of Appeals in Washington to deal with patent issues. Since then, patent inefficiency has been greatly reduced. However, maintaining a patent is still not so smooth and a lawsuit can only be filed after careful study. This is especially true for software patents, because the patent office has not been long since it began to grant many software patents, and its online technology library is very limited. Many software patents that have passed the examination are not suitable for patenting, as the Patent Office does not know whether the submitted invention is obvious or well known. These patents will be declared invalid. In fact, given all these dangers, many rather influential software patents have not been implemented. For example, IBM has a patent on an interactive data entry system. It is worth discussing that this patent can cover the operation of almost every data entry or database software program. In this field, IBM has a monopoly of 17 years (the patent validity period). However, IBM has not actively implemented this patent. In fact, many software patents are applied for defensive purposes, so no other person or company can apply for exclusive rights to this technology. Problems in protecting computer software with Trade Secret Law have many advantages for computer software, using Trade Secret Law to protect computer software. First of all, the protection of trade secrets is convenient. The protection of commercial secrets of computer software does not require any procedures. For the developed software and the developed software, the right holder can take certain confidential measures to protect valuable information, and this automatic and immediate protection is also recognized by law. Secondly, using the trade secret method to protect software has infinite time. From the perspective of commercial secrets, as long as the right holder takes confidential measures to protect his information from being known to the public, the interests of the right holder of the computer software can be protected to the maximum extent. In addition, the trade secret law also has a wide range of protection objects. The Trade Secret Law can protect procedures, documents, various technical concepts before and after development, providing rights holders with a wide range of rights choices. Because of the above advantages of the Trade Secret Law, a considerable number of software developers rely on the Trade Secret Law to protect computer software that is beneficial to their competition from being leaked. According to statistics, 78% of software manufacturers in the United States use business secrets and licensing contracts to protect their software. However, trade secret protection software also has some shortcomings, mainly manifested in: First, the fragility of protection. Trade secrets do not have exclusive rights, and it cannot be ruled out that others obtain information on the rights holder's confidentiality measures through legal means. For computer software, the right holder cannot prevent legal buyers from obtaining the source code of the software by decompiling the computer software. The source code of the software is the core secret of the software that developers take confidentiality measures. In addition, unintentional disclosure by the owner of a trade secret or illegal disclosure by a third party with a confidentiality obligation may lead to the failure of the protection of software trade secrets. Second, easy to monopolize. Using trade secrets to protect software is not conducive to subsequent research and improvement of the software, and may cause inappropriate restrictions on the right to rational use of the public and easily cause monopoly in the industry. Microsoft's continued lawsuits on suspicious monopoly through trade secrets protecting its source code from being leaked is an obvious example. Third, it is difficult to protect. Using trade secrets to protect software requires software developers to provide comprehensive protection of software and related materials from the beginning of development. However, in reality, many software companies' managers often ignore the confidentiality requirements of trade secrets and do not take enough confidentiality measures for software. Even if confidentiality measures are appropriate and effective, the cost is not low. In addition, protecting the source code of the program as a trade secret is not conducive to the technological progress of the entire society. Fourth, trade secrets stipulate that in the competition laws of each country, the terms formulated by each country are different. So far, the international protection of trade secrets has not yet formed a unified international standard, and no international reciprocity treaty has been concluded. Computer software is developing rapidly and needs unified international protection. There is still a long way to go to formulate corresponding conventions. Therefore, for software under development, as long as the rights holder takes effective measures to protect some valuable technical information and business information involved in software development, the protection of the Trade Secret Law is a good choice. For software developed and invested in circulation, due to the existence of reverse engineering, the trade secret law can only be used and played a role within a certain limit. Solutions to challenges facing protection of computer software intellectual property rights When people realize that they must provide legal protection for software, "what way to protect" becomes the primary issue that people need to consider. Given the special complexity of the new objects generated by the new technology of software and the rapid development of computer technology, leading to the continuous emergence of new problems, people have to constantly explore. The corresponding legislative and judicial practices are in constant adjustments, and there are also repetitions in model selection. Although, today most countries use copyright laws to protect software, reality does not equal conclusions. Although copyright law protects software has achieved gratifying achievements and has made impressive contributions to the development of the software industry, it has also encountered many difficult problems. As a result, the judicial circles of various countries have gradually relaxed the standards for software patent examination, and the phenomenon of returning from copyright protection to patent protection has emerged. However, both theory and practice have shown that the main drawback of the traditional copyright law protection model lies in its "deficiency", while the main drawback of the pure patent law protection model is "too much". So what is the ideal protection model?
(1) Ideal model for software protection In view of the above reasons, Mr. Zheng Chengsi, a famous intellectual property expert in my country, proposed the "Orange Zone" theory, and suggested establishing an industrial copyright system for software protection, combining the copyright protection methods for software and patent protection methods, taking the strengths of both, removing the weaknesses of both, and forming a new software legal protection system. This represents the opinion of the faction that a party advocates special legislation to protect software. There has been a precedent for this model of cross-protection that specifically legislates the protection of industrial designs and semiconductor chips. In theory, this is indeed the ideal way to protect software. In fact, as early as 1978, the World Intellectual Property Organization published its Model Law on the Protection of Computer Software. This law actually combined industrial property law with copyright law and is the prototype of an industrial copyright law, but it has not received widespread response. Instead of developing into the mainstream model in reality as people expect, the trend of protecting software through copyright law is increasing and eventually becoming the mainstream internationally. Why? In addition to the advantages of the relative suitability of the copyright protection model, another important reason is the rapid rise of the software industry and software urgently needs protection. From the perspective of legislation, the drafting and discussion of specialized laws that took too long is really unstoppable. It is easier to protect software directly by copyright law. From the perspective of international protection, since most countries that establish the software industry have enacted copyright laws, which are members of the Berne Convention and the World Copyright Convention, if the copyright law protection model is adopted, there is no need to conclude new multilateral conventions. Otherwise, if a new multilateral convention is concluded, it is not easy to reach a significant number of effective countries if they are concluded. Therefore, some major countries are eager to protect their interests and try their best to urge countries to adopt copyright laws to protect software. Therefore, the legislative denial of the special legislative protection model is not due to the theoretical denial of the "industrial copyright" characteristics of software. In software protection practices, the "industrial copyright" model is actually at work. Whether it is the SSO principle in Will's case or the subsequent "three-step review law", the judges used the explanation of the division of "ideology and expression" to break through the restrictions of traditional copyright laws and essentially took the path of industrial copyright protection. Therefore, this article believes that the "Orange Zone" theory is not outdated, and the industrial copyright model is still the development trend of software protection legislation.
(2) The best way to solve the problem of software protection at present. So, in current practice, what model should we adopt to fully protect software? The author believes that the development from single copyright protection to comprehensive comprehensive protection is the general trend. Establishing a comprehensive protection model with copyright law as the backbone and patent law, anti-unfair competition law, trade secret law, trademark law, and contract law as the wings is the best way to solve the software protection problem at present. Specifically, if the subject of a specific software is technical and is a statutory subject protected by the Patent Law, the patent law can be used to protect the creative ideological achievements that meet the conditions for invention and creation. For those dedicated software developed for a very small number of dedicated users, trade secrets and contractual laws can be used to protect the technical secrets therein. For software that has established a good reputation, trademarks can be used to help users identify their source. In addition, some new situations that cannot be followed in software protection can be adjusted by the Anti-Unfair Competition Law to make up for the shortcomings of various legislation. It can be seen that in the current practice of protecting computer software, various relevant legal systems should be combined to apply based on the specific characteristics of the software, and a complete protection system should be used to implement appropriate protection of the software. For more computer graduation thesis, please search for it on the Two Thousand Years website.
(I) Copyright law protects the mainstream status of computer software in the mid-to-late 1980s, many countries led by the United States began to revise copyright laws and incorporate computer software into the protection object of copyright law. In December 1980, the United States revised the Copyright Law, which legislatively confirmed that computer software, as a general writing work, belongs to the object of copyright law protection. In 1985, Japan revised its copyright law to protect computer software. On May 14, 1991, the Council of Ministers of the European Community issued the "Legal Protection Directive for Computer Programs", which made detailed provisions on the protection objects, program authors, reverse engineering, special protection measures, etc. As a result, the European Community finally introduced a unified copyright law protection system on the issue of legal protection of computer programs. In April 1994, the World Trade Organization signed the T R I P S Agreement, namely the Trade-Related Intellectual Property Agreement. Article 10, paragraph 1 of the Agreement stipulates that all member states or member regions must protect computer programs as "writing works" referred to in the Berne Convention. The T R I P S Agreement, as one of the basic agreements of W T O, is the first international treaty that clearly stipulates the protection of copyrights for computer software. The agreement laid the foundation for establishing a legal protection system for computer software copyrights around the world, and also marked that the copyright model has dominated the intellectual property protection of computer software. At present, more than 60 countries and regions around the world have adopted copyright laws to protect computer software. Some of these countries adopt traditional copyright laws to protect computer software (such as the United States), some specialize in computer protection regulations under copyright laws (such as China), and some have added special clauses for computer software to the original copyright laws, such as those related countries of the European Community.
(II) Copyright Law Protection Defects in Computer Software Although copyright law protection software has unique advantages, software has important differences from traditional works in many aspects, which makes it impossible for its legal protection issues to be fully incorporated into the field of copyright law. In practice, it is manifested as various defects in the copyright law protection model, which is also the reason why the protection model has been debated so far. Specifically, these defects are mainly reflected in the following aspects. First of all, the scope of protection provided by copyright law is insufficient for software. The expression form of software is both a textual work and a specific computer processing process that solves specific problems. Software is both work-oriented and instrumental, which makes the software contain quite creative technical factors. It is mainly reflected in the conception of software functions and structures during the software development process. Since copyright law only protects the expression of the work and does not protect the ideas, principles, concepts, methods, formulas, algorithms, etc. of the work, for computer software, only the performance of the program's works is protected by copyright law, while program concepts, program skills, etc. that reflect their instrumentality cannot be protected. In fact, the technical design of computer programs, such as the conception of software functions and structures in software development, is often a more important technical achievement than program code, and usually reflects the main creative contributions in software development. These technical factors are the essence of software. In the words of German lawyer GEISSLER, "The protection required by computer software is still a technological creation. From this perspective, the scope of protection of traditional copyright law is too narrow for computer software owners." The second is how to reasonably define the specific scope of the expression form of software works. It is also a difficult issue for the traditional copyright system. Copyright law infringement determination requires the distinction between ideas and expressions, which is very difficult for software works. Because the expression of software works is very similar to their concept, in the process of coded concepts, it is not necessary to have too much creativity, and it is easy to write similar programs based on a specific concept. People call the close relationship between the thought and expression of this program "the mixed nature of thought and expression", which makes it extremely difficult to distinguish the thought and expression of software.
The third is that traditional copyright law protects moral rights and is not conducive to the development of software. There are factors that are unfavorable to the development of software in software copyright protection, which are highlighted in "disclosure" and "modification". On the one hand, computer software (mainly source code) does not have to be disclosed to enjoy copyright protection, and source code is of great significance to the advancement and communication of software technology. On the other hand, the author of the software works has the right to maintain the integrity of the works and does not allow unauthorized modifications by others. Although legal users of the software enjoy a certain right to modify it, they are limited to modifying it for their own needs, and cannot provide the modified software to others for use. Therefore, further improvement of the software is only the privilege of the software owner. Others cannot obtain their own copyrights through modifications without the consent of the rights owner. This is not conducive to the communication and communication of software technology to a certain extent, and increases the cost of software development, thereby adversely affecting the development of software. Fourth, copyright protection only considers preventing copying, and does not protect the use of software at the same time as patent protection. In fact, the right holder cares about the copying of software to prevent the use of unauthorized software. The core value of the software lies in the right to use. In other words, software can only create value for society when used, and the interests of software developers are also realized through the use of software. If only illegal copying is prohibited and illegal use is not prohibited, then the rights of software developers cannot be fully protected. The fifth is the issue of protection period. Traditional copyright law generally provides 50 years for the author's life. Unlike traditional writing works, the existence value of software is its practicality. Since the software is updated very quickly, such a long protection period is unnecessary and can hinder the advancement of technology. Sixth, the infringement sanctions provided by copyright law are too light. The main method of sanctioning for copyright infringement is civil compensation, which rarely involves punishment, which is consistent with the ineffectiveness of ordinary works. However, software replication is extremely easy and has extremely low cost. The instrumentality of the software makes it extremely economic value, and illegal copying and distribution can be said to be a huge profit. Moreover, the software industry is gradually becoming a pillar industry, and infringement of software will seriously affect the economic order, so this punishment is too light and will not play a corresponding role. In addition, the copyright law protection model also has obvious flaws in the software operation interface protection, program module protection, and reasonable use of software. Among these shortcomings, some can be solved by making some adjustments and supplements to the relevant legal content on the premise of complying with the basic principles of copyright law; some cannot be properly resolved in the traditional copyright field. In short, for the special object of software, how to provide sufficient but not excessive protection is really a major problem in copyright law.
Difficulties encountered in patent law in protecting computer software, computer graduation thesis
(I) Discussion on the patentability of computer software Although the copyright protection model of software has gained a dominant position, the disadvantages of the copyright protection model have gradually emerged, and countries have not given up on the patent protection of software. The key to using patented methods to protect computer software lies in the patentability of computer software. From the initial non-patentability to patentability, the understanding of software patent protection has gone through a tortuous process. With the rapid development of the Internet and e-commerce today, with the development of the software industry, in order to strengthen the protection of software rights holders, the patent protection of computer software is showing a continuous expansion. Computer software is a logical entity, not a specific material entity. Its core lies in algorithms, so it has a certain degree of abstraction. At first, software was excluded from patent protection because people equated software with algorithms and believed that it belongs to the rule of intellectual activity. As people deepen their understanding of software tools, software patent protection is gradually put on the agenda. Article 101 of the US Patent Law stipulates that all useful, new, obvious intellectual achievements, whether they are a method, a machine, a product or a combination of all substances, may obtain patents according to law. The US Patent Law protects "everything created by human beings in the sun." It can be seen that the US patent law does not explicitly exclude the possibility of computer software being patented. To solve the patentability of computer software, the following two issues must be clarified: First, the technical characteristics of computer software require software patent protection. The purpose of patent law is to encourage and promote the progress of science and technology. Therefore, the intellectual achievements it protects must be technical, that is, they must use natural rules or natural phenomena. Article 27 of the TRIPS Agreement stipulates: "Any invention in any technical field can be patented." Article 2 of the Japanese Patent Law stipulates: "Inventions are the high level of creation of technical concepts that utilize natural laws." Inventions are technical solutions to solve a specific problem in the technical field using natural rules and natural phenomena. When reviewing an invention and creation, it is first necessary to determine whether it is technical. If you use a patent system to protect software, you must first clarify whether the software belongs to the technical field and whether it is a technical product. On the one hand, the software utilizes natural laws. The core of computer software is algorithms, and algorithms are rules of intellectual activities. The use of software is to use such rules in a specific way and bring certain technical effects through the operation of algorithms; on the other hand, the use of software in combination with computers or other machines is a specific technical solution. The use of software is to obtain certain technical results and solve certain technical problems. Computer software has a certain dependence on hardware. Programs must be implemented by hardware. The entire process of program work is the process of combining software and hardware. For users, software and hardware combine to form a tool-based device. Computer software must be combined with hardware to achieve its purpose of existence. In this sense, software and hardware are organic wholes when completing specific functions, and can be regarded as a special "device" and "product". The software realizes the indirect utilization of natural laws and phenomena, so it has certain technicality. Secondly, the algorithm cannot be completely equated with computer software. In essence, computer software uses language symbols that computer hardware can understand to control hardware and peripherals to achieve certain functions. Algorithms are the syntax of this language and are the core of the software. Specifically, an algorithm refers to a series of processing steps on data, which is a method and process that operates certain data structures to solve certain problems. It belongs to the design concept of a computer program. In form, an abstract algorithm is defined as a pure logic without any material entity, and seems to be merely a "law of nature" or "mathematical formula" and belongs to "rules and methods of intellectual activities", so it is concluded that software does not fall within the scope of patent protection.
(II) It is difficult to realize software patent rights and obtain patents approved by the Patent Office, which does not mean that the patent owner is at ease. In order to truly maintain a patent, it must overcome various legal challenges to the effectiveness of the patent. In most patent infringement cases, the defendant will counterclaim that the patent is invalid, which will cause the patent office to make mistakes or be confused. Sometimes, the court determines that there are more patents that are invalid than the ones it maintains. In this way, accusing others of infringement or preservation of patent rights is often quite dangerous, because the patent itself may have long since expired. In 982, the United States established a federal Circuit Court of Appeals in Washington to deal with patent issues. Since then, patent inefficiency has been greatly reduced. However, maintaining a patent is still not so smooth and a lawsuit can only be filed after careful study. This is especially true for software patents, because the patent office has not been long since it began to grant many software patents, and its online technology library is very limited. Many software patents that have passed the examination are not suitable for patenting, as the Patent Office does not know whether the submitted invention is obvious or well known. These patents will be declared invalid. In fact, given all these dangers, many rather influential software patents have not been implemented. For example, IBM has a patent on an interactive data entry system. It is worth discussing that this patent can cover the operation of almost every data entry or database software program. In this field, IBM has a monopoly of 17 years (the patent validity period). However, IBM has not actively implemented this patent. In fact, many software patents are applied for defensive purposes, so no other person or company can apply for exclusive rights to this technology. Problems in protecting computer software with Trade Secret Law have many advantages for computer software, using Trade Secret Law to protect computer software. First of all, the protection of trade secrets is convenient. The protection of commercial secrets of computer software does not require any procedures. For the developed software and the developed software, the right holder can take certain confidential measures to protect valuable information, and this automatic and immediate protection is also recognized by law. Secondly, using the trade secret method to protect software has infinite time. From the perspective of commercial secrets, as long as the right holder takes confidential measures to protect his information from being known to the public, the interests of the right holder of the computer software can be protected to the maximum extent. In addition, the trade secret law also has a wide range of protection objects. The Trade Secret Law can protect procedures, documents, various technical concepts before and after development, providing rights holders with a wide range of rights choices. Because of the above advantages of the Trade Secret Law, a considerable number of software developers rely on the Trade Secret Law to protect computer software that is beneficial to their competition from being leaked. According to statistics, 78% of software manufacturers in the United States use business secrets and licensing contracts to protect their software. However, trade secret protection software also has some shortcomings, mainly manifested in: First, the fragility of protection. Trade secrets do not have exclusive rights, and it cannot be ruled out that others obtain information on the rights holder's confidentiality measures through legal means. For computer software, the right holder cannot prevent legal buyers from obtaining the source code of the software by decompiling the computer software. The source code of the software is the core secret of the software that developers take confidentiality measures. In addition, unintentional disclosure by the owner of a trade secret or illegal disclosure by a third party with a confidentiality obligation may lead to the failure of the protection of software trade secrets. Second, easy to monopolize. Using trade secrets to protect software is not conducive to subsequent research and improvement of the software, and may cause inappropriate restrictions on the right to rational use of the public and easily cause monopoly in the industry. Microsoft's continued lawsuits on suspicious monopoly through trade secrets protecting its source code from being leaked is an obvious example. Third, it is difficult to protect. Using trade secrets to protect software requires software developers to provide comprehensive protection of software and related materials from the beginning of development. However, in reality, many software companies' managers often ignore the confidentiality requirements of trade secrets and do not take enough confidentiality measures for software. Even if confidentiality measures are appropriate and effective, the cost is not low. In addition, protecting the source code of the program as a trade secret is not conducive to the technological progress of the entire society. Fourth, trade secrets stipulate that in the competition laws of each country, the terms formulated by each country are different. So far, the international protection of trade secrets has not yet formed a unified international standard, and no international reciprocity treaty has been concluded. Computer software is developing rapidly and needs unified international protection. There is still a long way to go to formulate corresponding conventions. Therefore, for software under development, as long as the rights holder takes effective measures to protect some valuable technical information and business information involved in software development, the protection of the Trade Secret Law is a good choice. For software developed and invested in circulation, due to the existence of reverse engineering, the trade secret law can only be used and played a role within a certain limit. Solutions to challenges facing protection of computer software intellectual property rights When people realize that they must provide legal protection for software, "what way to protect" becomes the primary issue that people need to consider. Given the special complexity of the new objects generated by the new technology of software and the rapid development of computer technology, leading to the continuous emergence of new problems, people have to constantly explore. The corresponding legislative and judicial practices are in constant adjustments, and there are also repetitions in model selection. Although, today most countries use copyright laws to protect software, reality does not equal conclusions. Although copyright law protects software has achieved gratifying achievements and has made impressive contributions to the development of the software industry, it has also encountered many difficult problems. As a result, the judicial circles of various countries have gradually relaxed the standards for software patent examination, and the phenomenon of returning from copyright protection to patent protection has emerged. However, both theory and practice have shown that the main drawback of the traditional copyright law protection model lies in its "deficiency", while the main drawback of the pure patent law protection model is "too much". So what is the ideal protection model?
(1) Ideal model for software protection In view of the above reasons, Mr. Zheng Chengsi, a famous intellectual property expert in my country, proposed the "Orange Zone" theory, and suggested establishing an industrial copyright system for software protection, combining the copyright protection methods for software and patent protection methods, taking the strengths of both, removing the weaknesses of both, and forming a new software legal protection system. This represents the opinion of the faction that a party advocates special legislation to protect software. There has been a precedent for this model of cross-protection that specifically legislates the protection of industrial designs and semiconductor chips. In theory, this is indeed the ideal way to protect software. In fact, as early as 1978, the World Intellectual Property Organization published its Model Law on the Protection of Computer Software. This law actually combined industrial property law with copyright law and is the prototype of an industrial copyright law, but it has not received widespread response. Instead of developing into the mainstream model in reality as people expect, the trend of protecting software through copyright law is increasing and eventually becoming the mainstream internationally. Why? In addition to the advantages of the relative suitability of the copyright protection model, another important reason is the rapid rise of the software industry and software urgently needs protection. From the perspective of legislation, the drafting and discussion of specialized laws that took too long is really unstoppable. It is easier to protect software directly by copyright law. From the perspective of international protection, since most countries that establish the software industry have enacted copyright laws, which are members of the Berne Convention and the World Copyright Convention, if the copyright law protection model is adopted, there is no need to conclude new multilateral conventions. Otherwise, if a new multilateral convention is concluded, it is not easy to reach a significant number of effective countries if they are concluded. Therefore, some major countries are eager to protect their interests and try their best to urge countries to adopt copyright laws to protect software. Therefore, the legislative denial of the special legislative protection model is not due to the theoretical denial of the "industrial copyright" characteristics of software. In software protection practices, the "industrial copyright" model is actually at work. Whether it is the SSO principle in Will's case or the subsequent "three-step review law", the judges used the explanation of the division of "ideology and expression" to break through the restrictions of traditional copyright laws and essentially took the path of industrial copyright protection. Therefore, this article believes that the "Orange Zone" theory is not outdated, and the industrial copyright model is still the development trend of software protection legislation.
(2) The best way to solve the problem of software protection at present. So, in current practice, what model should we adopt to fully protect software? The author believes that the development from single copyright protection to comprehensive comprehensive protection is the general trend. Establishing a comprehensive protection model with copyright law as the backbone and patent law, anti-unfair competition law, trade secret law, trademark law, and contract law as the wings is the best way to solve the software protection problem at present. Specifically, if the subject of a specific software is technical and is a statutory subject protected by the Patent Law, the patent law can be used to protect the creative ideological achievements that meet the conditions for invention and creation. For those dedicated software developed for a very small number of dedicated users, trade secrets and contractual laws can be used to protect the technical secrets therein. For software that has established a good reputation, trademarks can be used to help users identify their source. In addition, some new situations that cannot be followed in software protection can be adjusted by the Anti-Unfair Competition Law to make up for the shortcomings of various legislation. It can be seen that in the current practice of protecting computer software, various relevant legal systems should be combined to apply based on the specific characteristics of the software, and a complete protection system should be used to implement appropriate protection of the software. For more computer graduation thesis, please search for it on the Two Thousand Years website.