Reverse Engineering of Software: Current Chinese Legislation Go back »
2013-01-31 | Nanjing
Reverse Engineering of software is related to the necessity of the diffusion of technical information embedded in software, algorithms, which are the base of software’s structure, and all the technical knowledge employed in software development. RE allows those related to it to acquire knowledge and employ it in the development of different software (not substantially similar) in order to promote the technological development of the sector.
In the compilation process the compiler translates the source code into machine code, so that the program can be executed by the computer. In computing science, the object file is the translation of the source code into machine code (binary code), readable only by the computer.
In this way even if potential competitors will not be able to utilize the patented software directly, they can study the invention to find different solutions. Nevertheless, compilation process is irreversible, so that it is impossible to decode the original command written by the developer. Therefore, if there is no access to the source code of the software, it is only possible to use the software in its final state, but its functions cannot be analyzed and modifications or improvements cannot be made.
Nevertheless, there are complex reverse engineering techniques that permit the analysis of software internal workings, but they are often illegal because they infringe copyright and patents related to the software.
Which are the legal boundaries of reverse engineering in China?
The current Copyright Law of People’s Republic of China does not directly cover all the cases related to reverse engineering. In 2002 the State Council promulgated specific dispositions for software protection, the Decree no. 339 issued by the State Council of People’s Republic of China on January 1st 2002 (“Regulation of 2002”). The dispositions contained in the Regulation of 2002 are now transposed in the new modification project of the Copyright Law, with a better definition of the legal boundaries of reverse engineering: in March 2012 the National Copyright Administration of China (“NCAC”) already elaborated the first modifications in the first bill. In July 6th 2012, on the basis of 1,600 observations, a second bill was issued.
Unlike the Regulation, whose Article 6 gave space to free activities of reverse engineering, because it did not protect the software’s owner from the manipulation of algorithms made by other people, the Copyright Law - in its modification project- would limit the activities of a third party when it is about to copy the software, because:
1) These activities can be executed by the licensee or another person who has the right to use a copy of the program or, on their behalf, by a person qualified to do it;
2) All the information obtained in virtue of its application cannot be communicated to a third party;
3) All the information obtained cannot be used for development, production or commercialization of a production that in its expression is substantially similar to the program, or for any other act that would violate author’s right.
Outside the boundaries outlines above, the activities of reverse engineering and information obtained through it have to be considered illegal.
In light of the fact that Chinese legislation is not well defined yet, it is advisable to protect software and related applications through detailed contracts which explicitly prohibit reverse engineering activities on them.
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