|
|
I. Brief Introduction
of Computer Software Protection in China
¡¡¡¡Computer software is one of the objects protected
by the Copyright Law of the People's Republication of
China. In order to further protect the interests of
copyright owner of computer software and promote the
developments of software industry and digitalization
of the national economy, the State Council of China
promulgated the new "Regulations on Protection
of Computer Software" on December 12, 2001, said
Regulations became effective on January 1, 2002. Said
Regulations set it clear and regulated in details of
protection to copyright of computer software.
¡¡¡¡The object of the copyright protection is computer
programs and their relevant documents. The subject of
the copyright protection is the developer who enjoys
the copyright, or other kind of right owners obtained
right through assignment, in heritage or licensee. Since
China joined the Berne Convention, computer software
shall be automatically protected in China for its copyright
once it is completed in a member state of the convention.
However, for a computer software made in a non-member
state, to obtain copyright protection in China, the
software shall be published in one of the member states
first. The protection term of software copyright of
a natural person is his lifetime and the fifty years
immediately after his death. When the software is co-developed,
the software copyright ends at the end of the 50th year
immediately after the death of the last lived co-owner.
The protection term is 50 years from its first publication
if the owner of the software is a legal entity or other
kind of organization.
II. Registration of Computer Software
¡¡¡¡Under our law and practice, it is not necessary to
register the copyright of computer software in China.
However, in order to more easily deal with copyright
dispute, the copyright of a computer software is recommended
to be registered in China because the registration certificate
of copyright, which is valid nationwide in China, shall
be deemed as a prima facie evidence of the copyright
to the copyright owner in legal proceedings.
¡¡¡¡To obtain a copyright registration for computer software
in China, a foreign applicant may entrust a Chinese
law firm (such as our firm) to file an application with
the Chinese Software Registration Center of the Chinese
Copyright Office.
1. Requirements on Registration of Copyright
¡¡¡¡1) An application form which shall be signed by the
applicant(s); if there are more than one applicants,
one applicant may represent all the other(s) while submitting
at the same time an authorization to said applicant.
¡¡¡¡2) Name(s), address(es) (including post code), nationality(ies)
and identification number(s) of the applicant(s); name
and telephone number of the person to contact if the
applicant is(are) an entity(ies). The applicant should
be the software right owner. Please also indicate:
¡¡¡¡¡¡(1) Whether the applicant(s) is(are) the original
copyright owner(s) or an heir(s) or assignee(s) of the
copyright. If the applicant(s) is(are) an heir(s) or
assignee(s), a notarized copy of certificate(s) of inheritance
or assignment of the copyright shall be provided.
¡¡¡¡¡¡(2) The status in which the copyright is owned by
the copyright owner(s), solely or jointly.
¡¡¡¡3) Evidence to prove the identification of the applicant(s),
i.e.,
¡¡¡¡¡¡(1) For individual applicant(s), notarized copy of
identification card(s), or,
¡¡¡¡¡¡(2) For entity(ies) as applicant(s), notarized copy
of business license(s).
¡¡¡¡4) Name(s), address(es) and nationality(ies) of the
developer(s) of the software. Please also indicate the
ways of developing the software, i.e., the software
is developed either independently or cooperatively or
under entrustment or as a task, in which, if there is
any involvement in the ownership of the copyright, please
also provide a notarized copy of contract or agreement
thereof.
¡¡¡¡5) Title (full name and simplified name), classification
number, version number, date of completion of the software,
date and place of the first publication of the software(if
it has been published).
¡¡¡¡6) Type of the software, i.e., whether it is an initially
created software or a revised one or a combined one
or a translated one. If it is not an initially created
software, please provide the title, version number and
registration number, if any, of the original software
and an authorization by the original software owner
for revision or combination or translation, and briefly
describe (no more than 100 words) the background of
obtaining the copyright together with an indication
if the original software has ever been published. If
the software is a combined one, please also briefly
describe the contents obtained from the originals.
¡¡¡¡7) Hardware environments, including title and model/type
of the computer used for developing the software, minimum
requirements to inner and outer memories (KB or MB),
title and model/type of computer on which the software
is mainly operated, and requirements on other peripheral
equipment.
¡¡¡¡8) Software environments, including title(s) and version
number(s) of operation system(s), titles and version
numbers of supporting environment(s) and language(s)
for programming, length of the source program list (items),
and title and model/type of medium for storing the software.
¡¡¡¡9) Applicable area, types of trades/industries to
which the software is mainly applicable and the main
use of the software in those trades/industries.
¡¡¡¡10) Retail price or quoted price (US$).
¡¡¡¡11) A description of the software, which should comprise
(no more than 500 words): the objects of developing
the software, main functions, capabilities and other
technical features of the software or its newly added
portion if the software is a revised one.
¡¡¡¡12) Source program list: 20 consecutive pages for
each of the beginning, middle and ending portion of
the source program list, or the whole source program
list if it is less than 60 pages in total.
¡¡¡¡13) Documentation materials, at least one of the materials
below:
¡¡¡¡¡¡(1) Specification of design.
¡¡¡¡¡¡(2) User's guide.
¡¡¡¡¡¡(3) Maintaining guide.
¡¡¡¡¡¡(4) Operation guide.
¡¡¡¡¡¡(5) Program flow chart.
¡¡¡¡which shall be 20 consecutive pages for each of the
beginning, middle and ending portion of the materials,
or the whole materials, if it is less than 60 pages
in total.
2. Notes:
¡¡¡¡1) If there is any trade secret and/or other secret
contained in the source program list and/or the documentation
materials that the applicant does not wish to divulge,
the applicant(s) may request, when filing the application,
for exceptional submitting the source program list and/or
the documentation materials by providing justified reasons.
Once the request is approved by the Chinese Software
Registration Center, the applicant may choose one of
the following ways to submit the source program list
and/or the documentation materials:
¡¡¡¡¡¡(1) 20 consecutive pages for each of the beginning,
middle and ending portion of the source program list
and/or the documentation materials with the secret parts
covered by darkened lines which shall not exceed 30%.
¡¡¡¡¡¡(2) The first 10 consecutive pages and 50 consecutive
pages of any other part of the source program list and/or
the documentation materials.
¡¡¡¡¡¡(3) 20 consecutive pages for each of the beginning,
middle and ending portion of the object code program
and 20 consecutive pages of any part of the source program
list.
¡¡¡¡2) After the application is allowed, the applicant
may, in order to easily obtaining evidence later, request
for seizure of all or the main parts of the source program
list by indicating the length of the source program
list and duration of seizure. The Chinese Software Registration
Center shall seal the stored source program list and
shall not unseal without either the applicant's permission
or the court's decision. |
|