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Research on the End-user’s Legal Liability of the Computer Software in China from "Regulations on the Protection of Computer Software"

Author: ZhouLiang
Tutor: ZhangQun
School: Southwestern University of Finance and Economics
Course: Economic Law
Keywords: End-user Liability Legislative proposals
CLC: D923.41
Type: Master's thesis
Year: 2007
Downloads: 271
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Abstract

When human society into the 21st century, the world has entered a knowledge-based economy and the digital age. There is growing recognition computer software as the novelty of the knowledge economy and the digital age we live in almost everywhere. In recent years, the end users of computer software liability has become an issue of intellectual property rights theorists focus of attention. The end users of computer software is a special kind of infringement subject, on the one hand, the market is God, no obligation rights, on the other hand it is the final completion of software infringement. The good relationship between the two, this special technology products for the protection of software intellectual property rights is very important. This paper aims to study the mature experience combined with foreign legal system construction in order to promote the prosperity and rapid development of the software industry of software intellectual property legal system, how to establish reasonable, suited to China's national conditions, the end-user of the computer software system of legal responsibility. The first part, the first end-user of the computer software defined. For end-users of computer software, the majority of scholars and experts of different elaboration expressed different views. While various forms of expression, but everyone in summary meaning is basically the same. The end users of computer software to buy software for himself or the unit learning, study, work, business activities, rather than again to copy, distribute and purchase the software. The end-users of computer software in the corresponding entry in the \I believe that there is no need for a strict distinction between the end-user of the computer software and the software copies holders, they are in a certain sense, it is the same concept. In this section, the author will also be the end user of the computer software is divided into a legitimate end users and illegal end-users, the legitimate end users including all of lawful copies of the software and other lawful copies holders, illegally final The user also includes goodwill illegal end users and malicious illegal end-users. Different types of end users assume different responsibilities. Computer software copyrights belong to the absolute right to a civil entities have an obligation to be respected, shall not be violated. Therefore, constitute an infringement of the general civil subject should be liable, under the same conditions, the obligations of the provisions of these Regulations, the legitimate end users must abide by; liability for breach of the obligations, the legitimate end users must also bear. The legal final liability can be divided into general liability and legal responsibility. For illegal end-user, goodwill illegal end users subjective well-intentioned, that does not know and had no reasonable grounds to know that the software is infringing copies, and is not liable for damages, but must bear to stop using and destroy the infringing copies of civil liability; illegal malicious end-user, which he knows or has reasonable grounds to know that the software is infringing copies must bear not only stop using, the destruction of civil liability reform infringing copies shall also bear the responsibility of compensation for the losses . The second part of this paper, first introduced the legislative process on the legal responsibility of the end-user of the computer software in China, and evaluation; also conducted the following analysis: 1, on the rational use of the provisions of the Ordinance is not conducive to the end user. Provisions on illegal copying is not conducive to the end-user, 30 is essentially the provisions of the holders of infringing copies of software (whether well or ill), unless there is free then the subject matter, should bear tort liability, 30 indirect provisions of the temporary copy, then copy the behavior of the provisions of Article 24 should belong to the permanent copy, because if the first 24 and then carry out the provisions of the temporary copy, that is, the legislation is repeat, on the other hand, the provisions of Article 24 of the legal responsibility significantly heavier than the 30, if the temporary copy of the perpetrator to bear such a heavy liability, unfair. 3, 30, all users use the infringing software pirated software behavior are determined for the violations and investigated corresponding tort liability is unreasonable: the use of pirated software will all end users are identified as infringing higher than the world general level; is not conducive to concentrate its efforts on combating illicit end-users operating; does not meet the level of China's national income; is not conducive to the development of the computer industry; difficult to operate in practice, because all end users use pirated software behavior are determined as infringing too far ahead , the public is difficult to accept the concept, so the operation too much difficulty, and the operation cost is too high. The third part, a comparative study of the relevant provisions of other countries, regions and organizations. Can be seen by other countries or regions on the analysis of the end-user of the computer software liability provisions At present, there are two cases, a computer software infringement boundaries do not extend to the end user, that is not clearly defined in the legislation, computer software The legal responsibility of the end-user; Another case is the ultimate boundaries of computer software infringement extends to the end user, but only for commercial purposes or business purpose the use of unauthorized software constitute infringement. Countries (regions) of the Copyright Law can be seen that the general copyright law is not a personal use for non-commercial purposes of infringing copies of software behavior as tort, even if the software industry is extremely developed in the United States also did not Yigai provisions ultimately the legal responsibility of the user; Japan, take into account the special nature of the software and the software copyright holders of special interests, whether direct profit \regulations, TRIPS defined as written works protected computer program, while end-users on the use of an infringing writings, copyright law should not intervene. China, as a developing country, the relevant provisions should be consistent with the requirements of the TRIPS software end-user liability, that is, the level of software protection should be positioned not the final boundaries extend to any end-user software piracy, but taking into account China's actual and software copyright holders interests, as well as other countries and regions of the status of relevant legislation, improve the relevant provisions, China should be a reasonable position. In the fourth part, I put forward the idea of ??improving the end-users in China's legal system. China's software to protect the legislative process, the main driving force is not due to the internal needs of the process of the development of China's software industry, and the lack of experience of the local Chinese, they do not have enough time to carefully weigh the feasibility and the pros and cons of every increase in the level of protection, so that This legislative process with a clear law-making due to the characteristics of the emergency legislation, which caused some problems. What should the software legal protection positioned at what level should be determined according to China's national interests. Therefore, we should not be blind to adapt to the requirements of the international community led by the developed countries on the level of intellectual property protection in China, the premise must be legislation to China's national conditions. Software protection legislation in China, China's socio-economic development of reality can not be ignored, can not ignore China's own cultural traditions and moral habits. Secondly pointed out that the principle of balance of interests determine the software end users, namely: standing on the stance of our country and nation; with international trends and standards to maximize the protection of the interests of our country's position; need to be determined according to different historical periods and social development domestic interest groups, a balance of interests; amendments to the relevant laws and regulations of the reality and the development of China's software industry, and software development, dissemination, and use of the various subjects of interests should be profound analysis, consider the characteristics of software the impact of these characteristics to the different stakeholders. Again, pointed reasonable definition of the software end user accountability, reasonable definition of the end users subjective fault. The enforcement of the \the end user a positive education. Concluded that, to improve the end-user of the software copyright awareness, self-protection capabilities of the software copyright holders, and increase efforts to crack down on software piracy. All aspects complement each other to play the maximum performance of the law. Study from Law to build and perfect the legal liability system for the end-user of the computer software in China with some innovative. Learn from developed countries or regions of the relevant provisions from the legislative point of view, the specific provisions, the law enforcement aspects of a useful discussion, to form a more systematic research, and innovation.

Research on the End-user’s Legal Liability of the Computer Software in China from "Regulations on the Protection of Computer Software"

Abstract

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