Of: Wu Xiao (Heilongjiang University School of Law) Site Date :2005-10-17 8:05:23
Including the work product and knowledge, including tangible property, the biggest difference is that knowledge of the product does not have exclusive use of its once open, can not be monopolized by individuals. To encourage individuals to create, in order to promote scientific and cultural development, intellectual property rights protection system established countries. Intellectual property rights, including copyright, is intangible intellectual people enjoyed the exclusive right, it makes the right people access to knowledge-based products and the interests can be protected. ? legal rights and obligations as the adjustment is based on the content, in fairness point of view, the law should ensure that their adjustment to achieve the interests of the principal balance of the state, so that their interests get what they want. There are two basic legal rights recognized in the form of protection is the right regulations and restrictions. Intellectual property law is no exception, limit the rights of intellectual property rights is a fair distribution of knowledge products most directly reflects the concept of justice, which aims to achieve the rights of intellectual property obligations and public use of the knowledge products of reciprocal rights and obligations, It is the intellectual property law is a very important feature. ? However, the ultimate goal of the establishment of the intellectual property system is to promote the improvement of the social scientific and cultural level. As the "Agreement on Trade-Related Intellectual Property Rights" (TRIPs) put it: "intellectual property rights protection and the exercise should aim to promote technology innovation, technology transfer and dissemination of technology for the benefit of the way the socio-economic benefits technical knowledge to promote mutual benefit of producers and users, and to promote a balance of rights and obligations. "protection of private rights holders, the public will have to make appropriate concessions. How to maintain public and personal balance between intellectual property rights, intellectual property system as the primary problem. Like other intellectual property laws, copyright law is a delicate balance between the interests of tact, balance the interests of copyright law and the copyright system changes the basic design criteria. Design of the copyright system is to reconcile two extremes: one input to the creation of man can not be fair and reasonable compensation; second is social progress and hampered the development of literature and art. When countries are all in the protection of copyright clearly stated: The law on the one hand to protect the interests of copyright owners, but we also need to protect the public use of works in order to promote the social science and arts and cultural development. Therefore, the law in protecting the interests of copyright owners, but also give a reasonable restriction of their rights in order to achieve the personal interests of copyright and social balance of interests.
And other types of copyright protection systems, the software copyright system is to maintain the basic role of the software copyright owners and public interest balance. Software copyright it is necessary to fully protect the rights of software copyright, but also the use of software to protect the public rights of production and scientific research. Therefore, appropriate restrictions on software copyright is the inevitable outcome of the copyright balance mechanism is in line with the basic principles of copyright law. Moreover, because copyright protection software longer term if the software monopoly of copyright in a few hands, it will only hinder the progress of software technology and hinder the development of the software industry. Therefore, the rights of software copyright restrictions on the exercise to be necessary, but also conducive to computer software technology, exchange and dissemination.
Software copyright restrictions, broad and narrow sense. Broad restrictions, including time limits, geographical restrictions and rights restrictions. Time limit refers to the software copyright only be exercised within a certain time, the software copyright protection requirement that its time limit. Geographical restriction of copyright to exercise the software is a certain geographical area. Limitation of rights refers to certain statutory cases, the software is subject to the exercise of certain copyright restrictions. Narrow sense, refers only to the right to limit the restrictions.
1, a time limit. According to the basic principles of copyright law, the moral right to exist forever, it will not die with the author's death, it will not disappear the expiry of the work. In copyright, the time limit is subject to property rights. States copyright laws are on the property rights of the copyright provisions in a certain expiration date. The effective period of protection, property rights of copyright owners strictly protected by law, expires when the work enters the public domain and copyright is no longer the copyright owner's private rights, shared by the public. Time limits of copyright is the exclusive copyright of "property rights after the termination" of the "public." ? China "Computer Software Protection Regulations," provides complete software copyright arising from the development of effective protection for 50 years. Date of commencement of protection of copyright of the main result of a natural person and the units are different. Software copyright protection of natural persons for the natural life and after his death five years, expiring in 50 years after the natural death of 31 December; protection software jointly developed the close of the final death of the first 50 years after the death of developer The Dec. 31; legal persons or other organizations, software copyright protection starting from the beginning the software was first published, but if the software after the completion of 50 years since development has not been published, no longer protected by law. Meanwhile, China's "implementation of the provisions of international copyright treaties," stipulates that foreign computer program as a text protection, can not require registration, protection of the first published since the program since the end of the year for 50 years. Software copyright protection is a constant time change will not change the subject of copyright.
Second, geographical restrictions. The unique characteristics of regional intellectual property. As an intellectual property, copyright effect in space is not infinite, it is subject to geographical restrictions, with strict territorial in nature, their effectiveness is limited in its territory. In general, national copyright laws outside of their works are not protected. But with social development, international scientific Wenhuajiaoliu closer, more and more regional in detention while breaking work as the world ?? results. To make the works of its nationals are protected in other countries, countries began to sign treaties or agreements by means of his country's work recognized in the domestic legal status in order to be able to get to the other countries are also protected. The signing of these treaties, also contributed to the International Copyright Protection System. In these conventions the system, the works of nationals of Member States in other member states are able to enjoy "national treatment" or "most favored nation treatment." China's "Computer Software Protection Regulations" on the states: "Foreigners, stateless persons the software, according to its developers, or the country of habitual residence or the country signed with China, China's participation in international treaties in accordance with copyright, protected by this Ordinance." The software works outside, but also some countries, as long as meet certain form of its elements can be protected by their domestic law. If Chinese law stipulates that foreigners, stateless persons the software as long as their first release in China, you can enjoy the copyright. The reason why the law provides that its purpose is to absorb more foreign software.
Third, limitation of rights. The narrow sense refers only to the copyright rights of copyright restrictions. Limit the rights of copyright of computer software mainly for the property rights of software copyright restrictions. According to law, the right to limit the restrictive measures to protect mainly the right to limit the scope of reasonable use of the software copy of the legal rights of owners and so on.
1, the right to limit the scope of protection. China's "Computer Software Protection Regulations," the second, fourth and sixth articles on software copyright protection were defined. Regulations refer only to the protection of computer software, computer programs and documents, and ideas used in software development, processing, methods of operation or mathematical concepts as such can not be protected, and protection of the software is limited to "independently developed by the developer and has been fixed in a tangible object, "the. Also, according to China's "Copyright Law" stipulates that law prohibits the publication or distribution of works protected by law. Copyright owners of copyright, shall not violate the Constitution and the law, and shall not harm the public interest. Therefore, computer viruses and other damaging programs though is the software but can not be protected by law.
2, fair use. Fair use means that under certain conditions, the law permits others without the consent of copyright owners, and free use of copyrighted works do not have to pay compensation to its lawful. My original "Computer Software Protection Regulations," Article 21 of the software provides for reasonable use of that "in classroom teaching, scientific research, public Deng national bodies need the software for non-commercial Mude a small amount of copy, can not by software copyright owner or his legal transferee's consent, and without payment of remuneration. " It provides the premise of fair use must be for non-commercial purposes, the scope of fair use is limited to classroom teaching, scientific research, state organs of official duties, and, others shall be given reasonable use of the name of the software, developers and can not infringe software copyright owners enjoy software and other copyright rights. Rational use of copies produced after use should be appropriately managed, recovery or destruction, shall not be used for other purposes or to others. Unfortunately, in December 2001 introduced a new version of "Computer Software Protection Regulations," describes the requirements on the rational use of deletion, makes the country a large number of educational and scientific research institutions, the executive branch overnight as infringers. Edition of "Computer Software Protection Regulations," has also been involved in the rational use of its Article 17 of "To study and research of software design ideas and principles implicit, through the installation, display, transmission or storage software, use of software" is also is a reasonable use. But the premise that the scope of fair use to be significantly less than the original "Computer Software Protection Regulations," the main provisions of the scope, it can only be based on "learning and research design concepts and principles embedded software," the purpose, scope of its application actors shrink from the public on the appropriate professional and technical category for software personnel, as a general non-professional and technical personnel do not need to "study and research design ideas and principles embedded software." In addition, the rational use of their own behavior, the "run" the most basic use of this method has also been excluded. ? can see, the new "Regulations on Protection of Computer Software" in the adjustment of software copyright and the balance between the interests of the public mechanism to add more chips to the copyright owner. Some people call this practice "ahead of legislation", and explain to the legal protection of software in China have reached "super world class." But I believe that his refusal to reasonable use of the public outside of the "ahead of legislation" is not conducive to our present stage of software copyright protection, it is the lawmakers did not understand the level of our technology and intellectual property areas of the international struggle against nature promulgated under the circumstances. New edition of "Computer Software Protection Regulations" to this are in the public areas of the rational use of the right software program to all copyright owners, allowing research and teaching institutions for the purpose of scientific research and teaching had to pay for software, business software, not all the expensive price research and teaching institutions can afford, which will be the development of China's scientific and cultural constraints. Moreover, most of the world's commercial software copyrights from the United States, European Union countries and other developed countries, including China, including many less-developed countries are in most cases people play "software users" or "social public "role. In these less developed countries, the software copyright copyright balancing the public interest and the ultimate struggle is reflected in the country with software copyright business conflicts of interest between the host country. New edition of "Computer Software Protection Regulations," deprived of the reasonable use of the existing public right a way, only to meet the interests of copyright the software, it certainly makes our country in international competition, intellectual property protection at a disadvantage. In fact, the United States and other countries in the balance of software copyright owners and the interests of the public still give sufficient room for the public. U.S. law stipulates that others can be based on non-profit educational purposes such as free use of copyrighted software.
3, the software copies the rights of legitimate owners. When the software copyright owners to exercise their rights, its part of the copyright may be transferred to the exhaustion of his transferee. After the sale, such as software copies, the copy of the legal owner of the software can be without the copyright owner's permission to implement a certain behavior. China's "Computer Software Protection Regulations" of Article XVI provides software to the rightful owners the right to copy three acts: (1) The use of the need to load the software and computer information processing capabilities with the device; (2) In order to prevent damage to make a backup copy copy; (3) In order to software for the real computer environment or improving its performance and make necessary changes. Article XVI software, the original copyright owner's rights are given to the legitimate owner of its copies are based on the flow and speed up the software development of software industry needs. Let the software to share copies of the software copyright owner certain rights of people, to encourage more people to buy the software copies. Which makes the software copyright owners to get more funds to develop new software. Although this provision seemingly is to limit the rights of software copyright, but the balance between copyright owners and the interests of all copies of the two sides have been able to achieve win-win situation. Moreover, the "Computer Software Protection Regulations" in the copy given to the owner's rights, but also of their rights under the two restrictions: First, the legal owner of the software not to make backup copies of copies available to others to use, and when their loss of ownership of copies of the backup copies must be destroyed; second, legitimate copy of the owner shall not be modified to any third party software. This effectively prevents the legitimate owner of the software copies the abuse of their rights, against the interests of the software copyright owner.
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Note
Yuan Beach: "Digital Copyright", the blog China Web http://www.blogchina.com/new/display/351.html
State Intellectual Property Office Intellectual Property Development Research Center: "Regulation of exercise of the rights of intellectual property", Beijing, Intellectual Property Press, 2004 edition, p. 123
State Intellectual Property Office Intellectual Property Development Research Center: "Regulation of exercise of the rights of intellectual property", Beijing, Intellectual Property Press, 2004 edition, p. 143
Step life: new version of "Computer Software Protection Regulations," Review of Shanghai Software Industry Association Network Expert Forum http://www.softline.org.cn/Article_Print.asp?ArticleID=255
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