China's Rocky Road to Computer Software Protection

By Tang Zhengyu, Partner Xiaohui Hu, Associate and Chen Ling, Associate,
Sidley Austin Brown & Wood Shanghai

China's creation of a set of rules protecting computer software as intellectual property has been of keen concern to foreign software producers who market their products in China. Some significant pieces of legislation have been drafted in this area as part of the ongoing legislative revisions surrounding China's WTO entry. Three pieces of legislation with significant impact on computer software protection, which have been recently revised and promulgated, include the PRC Copyright Law  (中华人民共和国著作权法) (the Copyright Law),¹ the Protection of Computer Software Regulations (the Software Regulations),² and the PRC Copyright Law Implementing Regulations (中华人民共和国著作权法实施条例) (the Copyright Implementing Regulations).³  Additionally, the Supreme People's Court has just issued the Interpretation of Certain Issues Relating to Application of Laws in the Trial of Civil Disputes Involving Copyrights (the Supreme People's Court Interpretation)⁴ that should also be generally applicable to the trial of civil disputes involving copyright to computer software. The primary goal for revision of the 1991 Regulations was to eliminate the discrepancies between provisions in the 1991 Regulations and the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), and to seek conformity with WTO requirements.  An additional reason for the revision was to respond to suggestions and demands from both the domestic and international software industries.  The new Regulations recognize additional rights for software users and substantially raise the legal protection of software producers to bring China's legislation more in line with international standards.

Background and Legislative History