计算机软件法律保护初探

摘要： 本文首先在前言部分简单地介绍了计算机软件，软件保护及其特点，认为计算机软件具有其它著作权保护对象所没有的特点，值得我们去研究。接着介绍了当前我国软件保护工程的严峻形势，在中外软件业基本情况的对比下，得出我国软件保护是一项关系我国软件业生死存亡的系统工程的结论，并提及了软件盗版的常见形式。本文着重论述了在软件保护过程中的三个存在争议或较不完善的法律问题，这三个问题分别是：如何区分计算机软件的表达与条例规定不受法律保护的思想、概念、处理过程等部分的问题；非职务软件著作权的归属问题；如何计算软件侵权损失赔偿额度的问题。对这些有待改进的法律问题提出了自己的看法，并对某些问题提出了比较可行的解决方法，同时结合典型案例，运用上述讨论的结果对案例进行简短的评论。最后根据本文的论述就今后的软件保护工程提出了自己的比较理想的建议，希望对实际工作有所启发。 Abstract: In this paper, at first in the preface, the computer software, protect of the software and its characteristics were introduced briefly, the computer software considered have the characteristics which other copyright protect object have not, worth while investigating. In the follow, the grimness position of protect of the software in our native currently were introduced; draw the conclusion which in our native protect of the software is a systems engineering which was the crisis to the software industry. The common formats of the software pirate were also mentioned. In this paper, three law problem which have disputed or not perfect in the protect process of the software were discussed emphasize. These three problems are: the problem how to distinguish the expression of the computer software from the thought, the concept, and the disposal process which the law doesn’t protect; the problem of the adscription of non-duty software copyright; the problem how to calculate compensate of the losing to the software pirate. Personal opinions were mentioned to these law problems which will be improved. And some feasible resolving were mentioned to these problem。While combining to the representative cases，the abbreviated reviews were done。In the end，base on the discuss in this paper，some comparative perfect advices were advanced to the protect process for the future，and were hoped useful to the practice pursuit。 关键词：软件保护，盗版，侵权认定，著作权归属，赔偿额度计算。