No one can deny that the 21st century is the era of the IT industry. There, a startup can become a unicorn in just a couple of years. No wonder that it has already been proclaimed that “software is eating the world”. Did you know for example that the world’s biggest bookstore, Amazon, is actually a software company? Compared to traditional industries, the speed of wealth accumulation in digital industries is amazing. The main reason for an IT company to become successful is that they developed great software. Needless to say that, software is very important for such a company.
This begs the question: how to protect the software I developed?
Generally speaking，there are two kinds of protections provided by law, one is a software patent, and the other one is software copyright. A software patent is a way to protect the design ideas of software by applying for a patent instead of protecting the software itself. On the other hand, a software copyright refers to all the exclusive rights to the software as being an original creation which, the developers or other right holders may enjoy in accordance with the provisions of relevant copyright laws.
Then what’s the differences between these two intellectual property rights (IPRs. You may check our post: Ten Points You Need to Know about China’s IPR System to know more）Let’s take a look:
I. The law is different
- 《Copyright Law》and《Regulations on the Protection of Computer Software》provide protection over software copyrights. A software copyright comes automatically into existence upon completion of a software development. However, the developer may choose to register the software copyright. The purpose of the registration is to rely on some kind of notarization, which could be used to declare copyright ownership, thus to have a more powerful probative force for subsequent infringement proceedings.
- 《Patent Law》provides protection over software patent. Software patents are protected passively, meaning the inventor must apply with the Patent Office to obtain protection if software patent is granted. Besides, the whole patent system is based on the principle of “open to public (in exchange) for protection”.
II. Success rate
For software copyright registration, as long as the form of the material submitted is in line with the requirements and does not violate the provisions of the Copyright Law, registration will be granted without going through a substantive review.
However, the application for a software patent is relatively complex, as it must go through a substantive review, that is, to examine whether the application meets the requirements of the Patent Law, such as novelty, creativity, practicality etc. Generally speaking, the success rate for a software patent to be granted is comparatively low.
III. Term and renewal costs
For a software copyright, the IP right holders only have to pay the application fee, no annual fee needs to be paid to maintain it. According to the applicable law, the copyright protection period for an individual’s work shall be the author’s lifetime plus 50 years after his death, and the copyright protection period for work of legal person or other organization shall be 50 years.
For a software patent, apart from the application fee, an annual fee shall be paid to maintain it. Failure to pay the annual fee before the respective deadline shall be considered as giving up the patent right. The protection period for a software patent shall be 20 years.
IV. Pros & cons
Software copyright can be protected without being publicized, and can be granted very soon.
Generally speaking, it takes 4 months to have a general registration being authorized，but it may take only one business day for an expedited application.
However, a software patent must be open to the public before obtaining protection. The time for application to be granted is around 2 years, and generally speaking, an expedited application is not possible. The good point with a software patent is that it provides protection over the design concept and idea, so the protection is stronger in this respect. Meanwhile, the inventor can propose some idea which can’t be achieved currently. Once the patent was granted, the inventor can then obtain income by licensing it. Actually, many large companies commercialize their patent reserves in this way.
V. The protection is different
To apply for registration of a software copyright, the source code and user operating manual should be submitted. In another words, protection for software copyright focuses on the form of expression instead of the idea. It makes it possible for competitors to research the software and then change the programming language to achieve the same result. However, you can’t claim copyright infringement, because the code is different.
While for a software patent application, it’s the design concept (including the content of the software flow chart) to be submitted, rather than the program language implementing the concept. Once the patent is granted, other people adopting the design idea or scheme of the software patent may constitute an infringement. Thus, a patent provides a more powerful protection.
Our suggestion: if people want to obtain full protection of their software, it is highly recommended that both patent and copyright should be filed to reduce the risk of being infringed. It is also important to note that software applications for patents can only be applied for if the software amounts to an invention.
