Gauging substantive similarity in software copyright disputes

Computer software, as scientific works, are protected by copyright laws in countries around the world. Under China’s Regulations for the Protection of Computer Software, computer software includes computer programs and related documents. A computer program refers to a coded command sequence that can be executed, for the purpose of obtaining certain results, by a computer or other information processing devices, or it refers to a symbolised command sequence, or language sequence, that can be automatically converted into a coded command sequence.

Among cases regarding infringement upon computer software copyright, the plaintiff usually claims that the defendant violated the right to reproduce or modify the software concerned, or the right to disseminate it in the information network. To ascertain whether any of those rights of the plaintiff have been infringed by the defendant, a rule known as “contact + substantial similarity + reasonable explanation excluded” is generally employed in judicial practice.

In A Guide for the Trial of Copyright Infringement Cases, released by the Beijing Higher People’s Court in April 2018, the acts to infringe upon computer software copyrights are divided into six types: Mere dissemination; end-user behaviour; plagiarism; destruction of technical measures; rent out; and other infringements.

Guiding cases, or typical cases released by the Supreme People’s Court (SPC) from 2015 to 2019, reveal that all cases involving computer software copyright infringement are of an end-user type, which means the defendant, as the end user, has directly used the plaintiff’s computer software in commercial activities without permission.

Chen Jing is a partner at Commerce & Finance Law Offices. She can be contacted on +86 10 6569 3399 or by email at chenjing@tongshang.com.