Introduction

Developing computer software is an intellectual labor-intensive industry with high development costs. In contrast, software copying is relatively simple, and its ease of reproduction not only promotes wide dissemination and use but also makes infringement extremely easy to occur. Infringement determination of computer software copyright generally follows the rules of “substantial similarity plus access plus exclusion of reasonable explanation,” where substantial similarity is primarily determined by comparing the source or target programs of both parties. However, in judicial practice, defendants often refuse to provide source or target programs, and due to technical limitations, the target program cannot be obtained, creating significant difficulties and controversies in infringement determination. This article explores how to resolve this issue.

Table of Contents

1. Scope of Protection for Computer Software Copyright
2. Types of Acts Infringing Computer Software Copyright
3. Basic Rules for Computer Software Infringement Determination
4. Burden of Proof, Obstruction of Evidence, and Fact Presumption in Computer Software Infringement Litigation

01

Scope of Protection for Computer Software Copyright

According to Articles 2 and 3 of the Regulations on Protection of Computer Software, computer software refers to computer programs and related documentation. Computer programs refer to coded instruction sequences that can be executed by devices with information processing capabilities like computers to obtain certain results, or symbol instruction sequences or symbol statement sequences that can be automatically converted into coded instruction sequences. Documentation refers to textual materials and charts describing program content, composition, design, functional specifications, development status, test results, and usage methods, such as program design specifications, flowcharts, and user manuals.

Computer software has two forms: source programs and target programs. According to Articles 2.4 and 2.5 of the Specification for Software Similarity Identification Implementation, source programs are uncompiled, human-readable computer instruction language instructions written according to certain programming language specifications. Target programs are machine code collections directly executable by computers generated after compilers or assemblers process source code.

In computer software copyright infringement disputes, determining whether the defendant’s infringement exists requires first establishing the scope of protection for the rights holder’s computer software copyright. First, according to the idea-expression dichotomy, copyright protects only the expression of ideas, not the ideas themselves. Article 6 of the Regulations on Protection of Computer Software provides that protection does not extend to the ideas, processing methods, operational methods, or mathematical concepts used in software development. Second, copyright protects only the expressive parts where the author made original creative contributions, not parts from the public domain, copied他人的 works, or lacking originality.

Therefore, whether computer software copyright is infringed depends on whether the defendant used the rights holder’s copyright-protected original expression.

02

Types of Acts Infringing Computer Software Copyright

Regarding the different characteristics of alleged infringing acts, Chapter 11 of the Beijing High People’s Court Guidelines for Trying Copyright Infringement Cases (hereinafter referred to as Beijing High Court Copyright Guidelines) categorizes common situations of computer software copyright infringement including pure dissemination, end-user, plagiarism, technical measure circumvention, rental, and others.

1. Pure Dissemination Type: The defendant does not change the content of the plaintiff’s computer software but provides it to the public through copying, distribution, or information network transmission.

2. End-User Type: The defendant does not change the content of the plaintiff’s computer software but uses it as an end-user in commercial activities.

3. Plagiarism Type: The defendant copies, modifies, or adapts the content of the plaintiff’s computer software and provides it to the public as software developed by the defendant.

4. Technical Measure Circumvention Type: The defendant intentionally avoids or circumvents technical measures taken by the copyright owner to protect its computer software.

5. Rental Type: The defendant temporarily licenses computer software to others for consideration, except where the computer software is not the main subject of the rental.

6. Other Computer Software Copyright Infringing Acts.

In pure dissemination and end-user cases, since the defendant does not change the content, comparison of software source or target programs is generally not involved. The trial focus of plagiarism cases generally lies in similarity comparison between plaintiff’s and defendant’s software, with more complex infringement determination rules.

03

Basic Rules for Computer Software Infringement Determination

“Substantial similarity plus access plus exclusion of reasonable explanation” is the generally applicable rule for computer software infringement determination: when plaintiff’s and defendant’s software are identical or substantially similar, and the defendant had access to plaintiff’s software, if the defendant cannot provide a reasonable explanation, infringement is established and corresponding compensation liability is borne.

A. Substantial Similarity

Software similarity comparison generally includes:

1. Source Program Comparison: This is the most direct and persuasive infringement comparison method. However, defendants rarely voluntarily submit source programs for comparison in practice.

2. Target Program Comparison: According to Article 3 of the Regulations on Protection of Computer Software, the source and target programs of the same computer program are considered the same work. Target programs can generally be directly read from evidence-preserved defendant computers or hardware.

3. Software Storage Medium Content, Installation Process, and Directory Comparison: Including comparison of optical disc content, installation process display, directories and files after installation, and running conditions.

4. Characteristic Defect (Design Defect) Comparison: Characteristic defects refer to unique defects not common to software generally, usually arising from designer oversights during software design.

B. Access

Access refers to whether the defendant previously had opportunities to research, develop, modify, or copy plaintiff’s software. This can be directly determined if the defendant worked at plaintiff’s company or distributed software products, or indirectly presumed if plaintiff’s software was publicly released earlier than defendant’s product.

C. Reasonable Explanation

Reasonable explanations for defendant’s defense generally include independent development, legitimate source, limited expression defense, fair use defense, and reverse engineering defense.

04

Burden of Proof, Obstruction of Evidence, and Fact Presumption in Computer Software Infringement Litigation

Article 67 of the Civil Procedure Law provides that parties have the burden of providing evidence for their claims. In situations where rights holders cannot obtain defendant’s source or target programs, what can be done?

A. Evidence Production Orders

Article 2 of the Supreme People’s Court Regulations on Evidence in Intellectual Property Civil Litigation provides that courts may require parties to provide relevant evidence based on case circumstances.

Article 24 provides that parties may apply to the court for evidence production orders to require the opposing party controlling evidence to submit it.

B. Obstruction of Evidence and Fact Presumption

Article 95 of the Supreme People’s Court Regulations on Evidence provides that if a party controlling evidence refuses to submit without justification, and the burden-of-proof party claims the evidence content is unfavorable to the controller, the court may find the claim established.

Article 25 of the Regulations on Evidence in Intellectual Property Civil Litigation further provides that if a party refuses to submit, submits false evidence, destroys evidence, or takes other actions making evidence unusable, the court may presume the opposing party’s claims regarding the proof matters are established.

Additionally, Article 11.8 of the Beijing High Court Copyright Guidelines provides that if the defendant refuses to provide source code and plaintiff can prove the target programs are identical or similar, substantial similarity may be found.

In cases where source and target programs cannot be obtained due to objective reasons, the rights holder should first complete its burden of proof showing the software interfaces, running results, and data structures are similar, or both software have identical names, directories, filenames, rights management information, design defects, redundant designs, and other identifying information. After the rights holder completes this burden, the court allocates and shifts the burden to the defendant to provide contrary evidence proving no infringement.