Software industry is knowledge-incentive industry and intellectual property rights (IPR) is its soul. However, today’s IPR protection can not meet the need of the industry. To some extent, IPR issues are still bottlenecks hindering the development of software industry. The People’s Court of Haidian District of Beijing made a study on IPR cases related to software enterprises received in the past five years and found there were 5 IPR problems in the development of software industry.

First, piracy obstructs the development of software industry. Piracy is embodied in the following four situations: duplicating and issuing software without permission of software copyright holders, imitating software with little amendment, bundle the software with that of copyright holders and issued them together without permision, and using software to make profits by end users without the licensing of copyright holders.

Second, trade secrets are often disclosed. The main means leading to the disclosure of trade secrets are the resignation of technical staff or managerial personnel, the failure of one party of technology contracts to keep trade secrets and the theft of trade secrets.

Third, the contract bears flaw. In recent years, though enterprises paid more and more attention to IPR issues, most enterprises have shortcomings in IPR contract management, which brings in lots of disputes related to IPR contracts.

Fourth, disputes are hard to resolve due to the features of such kind of disputes and lack of appropriate mechanism. Disputes in software industry are generally highly specialized. Most of the software infringement cases involve identification. Besides, the trial period is comparatively long and it is often quite difficult to get evidence to prove software copyright infringement. So, the rights may not be protected timely through filing lawsuits. Moreover, the mechanism to solve software disputes by administrative agencies and trade organizations still needs improving and the ways for software enterprises to solve disputes are quite limited.

Fifth, new technologies bring in new problems. With the increasingly close linkage between software industry and network, industry security faces new challenges and new technologies bring in new legal problems. At the same time, the high-speed development of the software industry caused the concentration of resources. Anti monopoly cases concerning software industry and cases related to other kinds of unfair competition actions are increased.

The study pointed out that non-exclusive feature was an important difference of IPR from tangible assets. Computer software research work needs plenty of labor power, time and funds while duplicating software needs short time and simple equipments. The economic life cycle of software is becoming shorter and shorter and right holders should shoulder more risks to get expected profits within limited time. However, pirates can invest little and get big market share. Besides, software development heavily depends on technicians who probably work for other bosses or set up their own companies.

According to Haidian Court, to break the bottleneck of software industry in IPR issues, enterprises should enhance IPR creation, management and protection, the society should guide software enterprises in IPR management and protection, and judicial organs should set up task force, and cultivate expert judges to solve specialized cases.

(Source: IPR in China)