intellectual property
Copyright
From the perspective of the nature of software works, the form of expression is protected. Source code (program), object code (program), and software documentation are the basic expressions (forms of expression) of computer software and are protected by copyright.
Software copyright arises from the date of completion of software development.
Copyright law only protects the expression of a work, but does not protect the ideas, principles, concepts, processing procedures, operating methods, mathematical concepts, formulas, algorithms, etc. of the work. For computer software, only the performance of the program is protected by the copyright law, while Program concepts and program techniques that reflect its functionality are not protected by copyright.
If the conditions of the company are used or there is a contract, all rights except the right of signature belong to the unit.
The copyright of works resulting from the adaptation, translation, annotation, and arrangement of existing works shall be enjoyed by the person who adapts, translates, annotates, and arranges them, but the copyright of the original work shall not be infringed upon when exercising the copyright.
patent
Protect the ideological connotation of the software from the perspective of software functionality, that is, the technical concept of the software, the logic and algorithm of the program, etc. When the computer software and the hardware device are an integral whole, and the invention patent involves the computer program, you can apply for a method patent. Patent protection.
Belong
- Whoever applies first owns it
- If you apply at the same time, the ownership will be negotiated, but it cannot be rejected at the same time.
Trademark rights
To provide protection for commercial software from the perspective of merchandise and goodwill, trademark rights can be used to prohibit others from using the same or similar trademarks and producing (making) or selling counterfeit software products. Trademark rights are protected more strongly than other intellectual property rights . , software infringements are more likely to be subject to administrative investigation and punishment.
Software trademark rights are the exclusive rights of software trademark owners to use their trademarks (specific logos for software products) in accordance with the law. In our country, trademark rights are obtained based on the registration principle, that is, only after the trademark owner registers his trademark in accordance with the law, the trademark registrant can obtain the trademark rights, and his trademark can be protected by law. If a software product has been branded with a product-specific logo, but the trademark has not been registered and the trademark exclusive rights have not been obtained, then the software product-specific logo cannot be protected by the trademark law, that is, it is not protected by software trademark rights. Unregistered trademarks can be used in commercial activities but are not protected by law. Unregistered trademarks are not protected by law, which does not mean that the use of unregistered trademarks is allowed to go unchecked. In order to better protect the exclusive rights of registered trademarks and maintain the order of trademark use, it is necessary to regulate the use of unregistered trademarks. Therefore, Article 48 of the Trademark Law specifically regulates the use of unregistered trademarks. Users of unregistered trademarks cannot violate this provision, otherwise the trademark administrative authorities will investigate and punish them in accordance with the law.
Trademark registration
- Whoever applies first owns it
- Apply at the same time, whoever uses it first owns it
- If evidence cannot be provided, the ownership will be negotiated. If the negotiation fails, lots will be drawn. (Be sure to determine a result)
Trademark registration refers to a legal system in which a trademark owner, in order to obtain the exclusive right to use a trademark, submits a registration application to the Trademark Office for the trademark it uses in accordance with the registration conditions, principles and procedures of the law, and the Trademark Office approves the registration after review. The trademark logo used when registering a trademark must have visual characteristics, and must not conflict with the legal rights previously obtained by others, or violate public order and good customs.
To have visibility (saliency), it must be visually perceptible, which can be two-dimensional text, graphics, letters, numbers, or three-dimensional logos or color combinations, as well as combinations of the above elements. Distinctiveness requires that the components of a trademark must be easily distinguishable. However, what kind of words, graphics and three-dimensional signs have distinctive characteristics? China’s trademark law generally makes prohibitive provisions from the negative side. Any trademark that does not contain prohibited elements (such as the same or similar signs as the national flag and national emblem of the People’s Republic of China) ), it is deemed to be significant. Distinctive features generally mean that they are easy to identify, that is, they cannot be the same or similar. Identical means that the words, graphics, letters, numbers, three-dimensional logos or color combinations of two trademarks used on the same or similar goods are the same. Products with the same pronunciation also belong to the same trademark. For example, "Xiaoyan" and "Xiaoyan", "Sanjiu" and "999" belong to the same trademark. Similarity refers to a trademark that is likely to cause consumers to misunderstand the source of the goods compared with a registered trademark in terms of the glyph, pronunciation, meaning of the text, the composition and color of the graphics, or the overall structure of the text and graphics. For example, tiger, leopard, and cat patterns have similar appearances; "Wahaha" and "Wahaha" have similar pronunciations; "Great Wall" and "Badaling", although their pronunciations and words are not similar, they refer to very similar things and have the same ideological themes. It can also cause misunderstandings among consumers. Therefore, in this question, "Yongyou" and "UFIDA" belong to the same trademark. The registration of the same trademark follows the principle of whoever applies first will own it. When applying at the same time (on the same day), it depends on who uses it first. If it cannot be determined, the ownership can be determined through negotiation. If the negotiation fails, the result can be determined by drawing lots.
Trade secret rights
The legal controller of a trade secret takes confidentiality measures and enjoys the exclusive right to use its business information and technical information in accordance with the law. The definition of a trade secret in my country's "Anti-Unfair Competition Law": is not known to the public and can be used by the right holder Technical information and business information that brings economic benefits, is practical, and has been kept secret by the right holder.
Software technical secrets refer to the technical information, data or knowledge applicable to the software, including: programs, design methods, technical solutions, functional planning, development status, test results and written information and diagrams of usage methods, such as program design instructions, processes Diagrams, user manual, etc. Software business secrets refer to business management methods that are software secrets as well as information and intelligence closely related to business management methods, including management methods, business methods, production and marketing strategies, customer intelligence (customer lists, customer needs), and knowledge of the software market. Analysis, forecast reports and future development plans, minimum bids in tenders and bid documents, etc.
the term
The protection period of invention patent is: 20 years.
The protection period of utility model patent is: 10 years.
The protection period of text and other copyrights is: during lifetime and 50 years after death.
infringement
The criterion for judging infringement is that the holder of the infringing software copy subjectively knows (or should know) whether the software he holds is an infringing copy. If you know that the software is an infringing copy and use it, you should bear legal responsibility. Subjectively, if you do not know that the software is an infringing copy, you will not be liable for infringement for the use and operation of the software.
If the publisher or producer of software copies cannot prove that their publication or production is legally authorized, or if the publisher or lessor of software copies cannot prove that the copies they issue or rent have legal sources, they shall bear legal responsibility.
Non-infringing conduct:
- Personal study, research or appreciation
- Perform other people’s work for free
- public speaking content
- Copying, painting, photography, and video of artworks in outdoor public places
- Translate Chinese works into ethnic minority works or publish them in Braille
Company A’s registration infringes on Painter B’s copyright. Copyright infringement is a civil dispute, and the parties may sue in court. If a trademark is registered in violation of the prior rights of others, it is an improperly registered trademark, and the party concerned should request the Trademark Review and Adjudication Board to accept it. If a registered trademark violates the provisions of the Trademark Law, interested parties may request the Trademark Review and Adjudication Board to accept the case. If the party is dissatisfied with the Trademark Review and Adjudication Board's ruling, the party concerned may file a lawsuit in court. As for the negotiation between the two parties, the law is allowed as long as it does not harm the public interests of the country and society.
Case
When a photographer sells the original photographic work, no copyright is involved. The copyright of the photographic work still belongs to the photographer. This is because when a photographer sells the original photographic work, he only transfers the property rights of the original photographic work (the work) and does not involve the transfer of copyright. The transfer of the original photographic work is not equivalent to the transfer of the copyright of the photographic work. Therefore, the copyright of this photographic work still belongs to the photographer.
Originals of photographic works can be bought, sold and given away. However, acquiring a photographic work does not mean acquiring the copyright to the work. Article 18 of my country’s Copyright Law stipulates: “The transfer of ownership of original works of art and other works shall not be regarded as a transfer of the copyright of the work, but the right to display the original works of art shall be enjoyed by the original owner.” This means that the fact that the work is transferred does not cause When the copyright of a work is transferred, the transferee only obtains the ownership of the object and the right to display the original work. The copyright of the work is still enjoyed by the author and other copyright holders. In addition to works of art, for any work whose original ownership may be transferred, attention must be paid to distinguishing between the property rights of the material carrier of the work and the copyright of the work.
After the photographic work is published, if the original is accidentally destroyed, the photographer still enjoys the copyright of the photographic work. This is because the loss of the original photographic work is not equivalent to the loss of the copyright of the photographic work. In other words, the existence of copyright is not predicated on the existence of the original material carrier of the work, but is based on the legal protection period.
Test points
- Unpublished work must not be cited when writing academic papers
- The object of protection of software trademark rights: software registered trademarks
standardization
Several standards:
- International standards: usually start with I, corresponding to International, ISO, IEC, etc.
- National standards: ANSI, GB, etc.
- Regional standards: PASC, Pacific Area Standards Conference
- Industry standards: GJB: National Military Standard; MIT-S: U.S. Military Standard
- Local standards: Domestic ones usually start with DB
- Enterprise standard: Domestic ones usually start with Q/
National standards are standards formulated by the standardization administrative department of the State Council. The number of a national standard consists of the standard code number - the standard release sequence number - the standard release year number. The code name of national standards consists of uppercase Chinese pinyin letters. The code name of mandatory national standards is GB, and the code name of recommended national standards is GB/T.
Industry standard codes are submitted by relevant administrative departments under the State Council for the scope of industry standards they manage. The standardization administrative department under the State Council examines, determines and officially announces the industry standard code. Officially announced industry codes: QJ (aerospace), SJ (electronics), JB (machinery), JR (finance), HB (aviation), etc. The industry standard code consists of Chinese pinyin capital letters, plus a slash T to form a recommended industry standard. The number of an industry standard consists of the industry standard code, standard release sequence and standard release year number. For example, "HB 6698-1993 Classification Characteristic System for Software Tool Evaluation and Selection" is a mandatory industry standard number. GJB is the national military standard code of the People's Republic of China.
Local standards are standards formulated by the standardization administrative departments of provinces, autonomous regions, and municipalities directly under the Central Government and reported to the standardization administrative department of the State Council and the relevant industry administrative departments of the State Council for filing. The local standard code consists of the uppercase Chinese pinyin DB plus the first two digits of the administrative division code of the province, autonomous region, or municipality directly under the Central Government (Beijing City 11, Tianjin City 12), plus a slash T to form a recommended local standard (DBXX / T), Without the slash T, it is a mandatory local standard (DBXX). The number of local standards consists of three parts: local standard code, release sequence number, and release year, namely DBXX XXX—XXXXo. Enterprise standards are corresponding standards that are formulated by enterprises themselves and serve as the basis for organizing production.
Once an enterprise standard is formulated and promulgated, it is binding on the entire enterprise and is an enterprise regulatory document. There is no distinction between mandatory enterprise standards and recommended enterprise standards. The enterprise code can be composed of uppercase pinyin letters or Arabic numerals or both (Q/XXX). According to centrally-affiliated enterprises and local enterprises, the relevant administrative departments of the State Council or the standardization administrative departments of provinces, autonomous regions and municipalities directly under the Central Government shall work together with the relevant departments at the same level. Administrative authorities shall stipulate this. The number of an enterprise standard consists of the enterprise standard code, release sequence number and release year number, S/Q/XXX XXXX—XXXX.
ANSI: AMERICAN NATIONAL STANDARDS INSTITUTE, American National Standards Institute
GB: Mandatory national standard code, national technical regulations, legally binding.
GB/T: Recommended national standard code, guiding standard, not mandatory. Any unit has the right to decide whether to adopt it. Violation of such standards will not constitute economic or legal liability. Once the recommended standards are accepted and adopted, or agreed upon by all parties and included in the economic contract , they become the technical basis that all parties must abide by and are legally binding.
Industry Standard: Code Name Reference