The exact definition of software can fluctuate nation to nation, as each nation adjusts the definition provided by the World Intellectual Property Organization (“WIPO”) 1 to address their respective situations.In China, Article II of the Order of the State Council of the People’s Republic of China defines “computer software” as “computer programs and the relevant documentation thereof.” 2

I. Copyright Protection for Computer Software

Copyright protection is the most widely used legal protection model for software internationally. As a type of “works”, copyright law offers a broad scope of protection to software. Because copyright law standards to qualify as works are not high, only formal innovation is needed. Therefore, almost all software falls within the purview of copyright protection. Based on the “automatic copyright” system, software can conveniently and efficiently be copyright protected immediately after its development without further application and approval. As copyright protection is the most prevailing protection system for intellectual property, most nations which have set up copyright protection systems are members of Berne Convention and Universal Copyright Convention. Therefore, international protection for software can be more easily gained under a copyright protection system, and there is no need to introduce new multilateral treaties to protect software.

Copyright Law of the People’s Republic of China explicitly covers software. 3 In 1991, China promulgated the regulations specific to software protection—Regulations on the Protection of Computer Software (“Regulations”). According to the Regulations, software that is independently developed and that is in a material form, such as magnetic media or CD, will enjoy copyright protection.

II. Patent Protection of Computer Software

Software protection is within the purview of the Patent Law of China. Inventions composed of software programs are significantly different from traditional “works” because it consists of a large amount of creative work. Therefore, the software developer’s ideas are the most valuable and are most in need of protection. If technicians obtained the developer’s design ideas, they can easily design a program– via reverse engineering, reverse coding, or reverse assembly—that shares the same or similar function. However technical ideas can not be protected by traditional copyright law.

Under copyright law, only the expressive forms of works are within the purview of protection; ideas and “function” are excluded from the purview. For the programs depicting technical ideas, especially those inventions involving computer programs, patent law protection usually adopts the functional characteristics to limit their scope of protection. Patent protection is characterized by its exclusive and monopolized rights. Once patent rights are granted to computer software, any similar inventions, even those developed independently by others, falling into the scope of patent protection will constitute an infringement.