The development of the current information technology and information technology services market compared to previous years is a remarkable progress. This must be mentioned since after COVID-19, the need for online shopping or remote labor, entertainment, and commerce services has become more popular. Computer programs are intellectual property. Therefore, in what form can computer programs be protected? Please follow VCD’s article below.
1. What is a computer program?
A computer program is a set of instructions for performing tasks by a computer. A computer requires programs to operate and typically executes program instructions in the central processing unit. When users run programs, the files are read by the computer and the processor reads the data in the files as a list of instructions. Then the computer does what the program tells it to do. A computer program is written in a programming language, such as BASIC, C, or Java. Once a computer program is written, programmers use a compiler to turn that computer program into a language the computer can understand.
The Trips Agreement – Agreement on Trade-Related Aspects of Intellectual Property Rights clearly states in Clause 1, Article 10 the form of protection for computer programs as follows: “Computer programs, whether in the form of source code or machine code, must be protected as literary works under the Berne Convention (1971)”.
Based on the above spirit, Clause 1, Article 22 of the Intellectual Property Law regulates computer programs as follows: “A computer program is a set of instructions expressed in the form of commands, codes, diagrams or other forms. , when attached to a vehicle or device operated by a computer programming language, can cause the computer or device to perform work or achieve a specific result. Computer programs are protected as literary works, whether expressed in source code or machine code.”
2. Forms of copyright protection for computer programs
2.1. Copyright protection for computer programs
According to Article 14 of the Intellectual Property Law, computer programs are protected by copyright. Copyright protection for computer programs protects the form of expression (interface, context) and code, not the idea of the computer program. Protecting computer programs is similar to protecting literary works will have a solid legal basis to handle copying by other units.
In addition, because copyright laws do not protect computer program ideas, authors and copyright owners cannot prevent users of computer programs or other organizations and individuals from using them. Conduct reverse analysis of computer programs to decode and find the operating principles and structure of computer programs for development purposes. The person who successfully conducts reverse analysis will be the owner of the new computer program. This contributes to promoting the development of the software industry, which has great socio-economic significance.
According to the provisions of Article 27 of the Intellectual Property Law, the author’s moral rights are protected indefinitely and the copyright owner’s property rights to computer programs are protected throughout the author’s life The next 50 years were the year the author died.
2.2. Patent protection for computer programs
According to the United States Copyright Code, copyright protection is provided for computer programs, but a computer program can be granted a patent if the software is associated with a structure. physical architecture.
According to Clause 2, Article 59 of the Intellectual Property Law and reference to the specific patent appraisal regulations in Article 5.8.2.5, it states that: “Although computer programs are on the list of objects that are not protected as inventions if the object sought to be protected has technical characteristics and is a technical solution, intended to solve a technical problem by a technical means to create a technical effect, it can be protected as an invention” (Point a Clause 2, Article 102 of the Law on Intellectual Property). Therefore, it can be understood that if a computer program is truly a technical solution, linked to a technical device and described in the form of a process, it can be protected as a patent.
Currently, besides countries that do not protect computer programs as patents (Vietnam, UK, France, EU), several countries do not deny patent protection related to computer programs counted in their laws such as the US, Canada, and Australia. Although the Patent Appraisal Regulations state that there are exceptions where computer programs can be protected as inventions, computer programs are excluded from granting patent protection according to regulations of the Intellectual Property Law. Therefore, copyright is the only and most appropriate form of protection. In India, copyright protection for computer programs is also provided, but the Indian Patent Act also stipulates that a computer program can be patented when it is associated with a physical structure. physical. Similarly in China, the Copyright Law regulates the protection of computer software. Although international law and the laws of some other countries provide for copyright protection for computer programs, the possibility of granting patents for this type still is not ruled out.
3. Comment on two forms of computer program protection
Firstly, copyright protection for computer programs is automatic from the moment the computer program is created without having to register or go through any procedures. On the contrary, registering a computer program patent requires submitting an application, going through the application examination stage (in terms of form and content), and paying an application registration fee as well as a fee to maintain document validity. annual degree. In addition, computer program patent protection must be public and anyone can access this information. In the patent application, the owner must include a description of the invention which “discloses fully the nature of the invention to the extent that a person with an average knowledge of the relevant technical field can rely on it.” application that can realize that invention”. This could potentially be exploited by competitors.
Secondly, the copyright protection period for computer programs is longer than for patent protection (20 years). However, there is also the view that whether copyright protection or patent protection for computer programs, the term of protection is too long for the life cycle of a computer program. For example, Windows software is constantly updated by Microsoft to release new versions and upgrades compared to old versions (Windows 1.0 in 1985, Windows 2.0 in 1987, Windows 3.0 in 1990…).
Above is the article: “In what form are computer programs protected by intellectual property?”. Hope this article will help you.
