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	OPINION OF THE NATIONAL COPYRIGHT ADMINISTRATION ON COPYRIGHT PROTECTION OF COMPUTER SOFTWARE

	(No.26 [2003] of the National Copyright Administration promulgated on July 7, 2003)


SUBJECT : LEGAL INTERPRETATION; COPYRIGHT PROTECTION OF COMPUTER SOFTWARE
ISSUING DEPARTMENT : NATIONAL COPYRIGHT ADMINISTRATION OF THE PEOPLE'S REPUBLIC OF CHINA
ISSUE DATE : 07/07/2003
IMPLEMENT DATE : 07/07/2003
LENGTH : 878 words
TEXT :

Regarding Request for Instruction on the Issue of Whether the Computer Software Produced by XX Computer Control Equipment Factory of Hangzhou has Infringed upon the Copyright of Others (No.2 [2003] of the Copyright Bureau of Zhejiang Province), we hereby give our instructions as follows upon deliberation:

I. WHETHER THE COMPUTER SOFTWARE OF THE ACCUSED HAS INFRINGED UPON THE COPYRIGHT OF OTHERS

According to the provisions stipulated in the Copyright Law of the People's Republic of China and the Regulations for Computer Software Protection (hereinafter referred to the Software Regulations), the accused shall bear the legal liability if he cannot prove the legal source of productions or software produced or published by it/him. In this case, it has been ascertained by the relevant authority that the software of the accused XX Computer Control Equipment Factory of Hangzhou is almost the same as that of the complainant, therefore the accused shall provide evidence to prove the legal source of its software. If it fails to do so, it shall bear the liability of infringement.

II. HOW TO INTERPRET ARTICLE 29 OF THE SOFTWARE REGULATIONS

According to Article 29 of the Software Regulations, the similar or identical software does not constitute an infringement if the available expression methods are finite. But the similar or identical software must be a work produced respectively and independently, and shall not be a plagiarized or copied one of others.

In a software copyright dispute, if the accused claims "finite expression methods" in his defense, he shall prove that the available expression methods are indeed finite; if he fails to do so, he shall bear the corresponding liability of infringement.

Annex: The Request for Instruction on the Issue of Whether the Computer Software Produced by XX Computer Control Equipment Factory of Hangzhou has Infringed upon the Copyright of Others

Annex:

THE REQUEST FOR INSTRUCTION ON THE ISSUE OF WHETHER THE COMPUTER SOFTWARE PRODUCED BY XX COMPUTER CONTROL EQUIPMENT FACTORY OF HANGZHOU HAS INFRINGED UPON THE COPYRIGHT OF OTHERS

The Municipal Copyright Bureau of Hangzhou has asked recently for instruction on how to deal with a computer software copyright infringement dispute between Hangzhou XX Computer Embroidering Machine Factory and XX Computer Control Equipment Factory, and the major circumstances are as follows:

On about the last-ten day of February, the Municipal Copyright Bureau of Hangzhou received a complaint from Hangzhou XX Computer Embroidering Machine Factory, claiming that its software of Sock Machine Computer Control System V6.0 (No.0007573 of Registration for Software Copyright) (Annex 1) had been unlocked and copied by XX Computer Control Equipment Factory, and that has constituted an infringement. The machine factory also provided a probation report produced on Dec 30, 2002 by the Copyright Probation Committee under the Copyright Protection Center of China (No.012 (2003) of the Copyright Protection Center of China) (Annex 2) and a written legal opinion produced on Jan 6, 2003 by the Legal Affairs Department under the Copyright Protection Center of China to the Municipal Public Safety Bureau of Hangzhou (Annex 3). The Municipal Copyright Bureau of Hangzhou conducted further investigation on the relevant matters such as whether the software had been produced independently, whether the "finite expression methods" led to the two identical software and so on. The municipal bureau found after investigation that XX Computer Control Equipment Factory had failed to provide the origin program and target program independently produced by it for its software of Sock Machine Computer Control System V1.0. According to No.012 (2003) of the Copyright Protection Center of China, to the written legal opinion produced by the Legal Affairs Department under the Copyright Protection Center of China, and to the fact that XX Computer Control Equipment Factory failed to provide evidence on the independence of its software production, the Municipal Copyright Bureau of Hangzhou made an initial conclusion that the Sock Machine Computer Control System V1.0 of XX Computer Control Equipment Factory is suspected of infringing upon the copyright of the Sock Machine Computer Control System V6.0 by Hangzhou XX Computer Embroidering Machine Factory.

In order to stick to the spirit of laws and regulations, and considering that XX Computer Control Equipment Factory had also obtained a computer software copyright registration certificate for its Sock Machine Computer Control System V1.0 (No.003182 of Registration for Software Copyright) (Annex 4), and that it is difficult to judge whether the "finite expression methods" in this case exists or not, we are now asking for instruction on the following points: 1.Whether the Sock Machine Computer Control System V1.0 of XX Computer Control Equipment Factory has infringed upon the copyright of the Sock Machine Computer Control System V6.0 by Hangzhou XX Computer Embroidering Machine Factory
2.How to interpret Article 29 of the Regulations for Computer Software Protection, and how to judge whether the "finite expression methods" in this case exists or not

Annex:
1.Computer Software Copyright Registration Certificate for the Sock Machine Computer Control System V6.0 (No.0007573 of Registration for Software Copyright) (omitted)
2.Probation Report produced by the Copyright Protection Center of China (No.012 (2003) of the Copyright Protection Center of China) (omitted)
3.Written Legal Opinion produced by the Legal Affairs Department under the Copyright Protection Center of China (omitted)
4.Computer Software Copyright Registration Certificate for the Sock Machine Computer Control System V1.0 (No.003182 of Registration for Software Copyright) (omitted)