The daily law journal is full of press, and xing dongwei, zhong xiaoqian, correspondent, pan chai yong
In recent days, a dispute over copyright for computer software has been settled by the court of intellectual property rights of the free trade port of hainan, which has led to the “illegal use” of computer software as a “legitimate authorization” through proper and effective preservation of evidence。
A finnish programme company is the author of a building information modelling software that is widely used in the construction design industry. A programme company submitted a preliminary lead showing that a steel company was using the software to conduct its business and filed a lawsuit with the tribunal of intellectual property of the hainan free trade port on the grounds that three defendants, such as a steel company, had reproduced, installed, commercially used and violated the copyright of the software on a large scale in their daily business without authorization。
A programme company requested that the three defendants be ordered to cease the violation and to compensate for the economic loss. At the same time, an application for preservation of evidence was filed for the preservation of information relating to the reproduction, installation and use of the software on computers and other equipment in the premises where the three defendants operated. A programme company guaranteed the application for preservation of evidence and requested that the three defendants not be served with the relevant prosecution materials until the preservation of evidence had been completed and that the transfer, destruction and concealment of evidence by the three defendants not result in the taking of evidentiary preservation measures。
Upon examination, the tribunal found that a finnish programme company had sought to preserve tort software in the computers or hardware of the three defendants, that it was relevant to the main facts of the case, that it had greater probative powers, such as failing to preserve evidence of loss and subsequent impracticability, and that the tort software was objectively not available to a finnish programme company, that it was procedurally feasible to preserve evidence, and that it had decided to take protective measures against evidence of alleged infringement of software copyright rights of a finnish programme company on computer and other facilities in the premises where the three defendants operated。
Following the decision, the henan free trade port intellectual property court dispatched in time three teams of judges to each of the three defendants ' different places of business to work at the same time on the preservation of evidence, photographing, recording, fixing the software on the computer for alleged infringement, and simultaneously serving incriminating materials such as indictments, preservation decisions, etc., for legal clarification. In the course of preserving evidence, civilization is enforced, implemented quickly and, as far as possible, without prejudice to the person's office order, with the cooperation and understanding of the person concerned. In the follow-up proceedings, the presiding judge actively organized mediation between the parties, which resulted in the conclusion of a mediation agreement between the parties focusing on the purchase of over $2 million of the original software and the settlement of cases。
The judge's statement
The software developers are sick of pirated software. As a software developer, considerable human, material and financial resources have been invested in research and development, and the resulting computer software is the conglomerate of developers ' wisdom and central to their ability to recover costs and maintain market competitiveness. However, the emergence of pirated software could undermine the ability of developers to protect authentic software。
The intangible nature of computer software has led to difficulties in obtaining evidence and defending rights in cases of infringement of copyright for computer software. The good use of evidence preservation in accordance with the law is one of the important ways to solve the “evidence difficulties”. In this case, the court, after the applicant had provided prima facie evidence that his rights were being violated, took prompt measures of protection of evidence in accordance with the law, without prior hearing of the other party, fixed the evidence of the alleged violation and secured the cooperation and respect of the parties for the measures of protection through a legal declaration, laid the foundation for a subsequent settlement of the purchase of the original software agreement and the “illegal use” of the software as a “legitimate authorization” and showed the foreign party the principle of equal protection and strict protection of intellectual property rights, achieving uniformity of legal, political and social effects。
