Research On The Judgment Of "Substantial Approximation" Of Computer Software

In 2021,China’s software business revenue reached 9499.4 billion yuan,and the software industry has become a particularly important industry in China.Every computer software may directly or indirectly create huge economic value.Driven by interests,some people are willing to take the risk of legal sanctions to implement plagiarism and benefit from it,which seriously infringes on the legitimate rights and interests of software owners and curbs the innovative development of software industry.In the cases of plagiarism and plagiarism of computer software,the main basis for judging whether there is infringement is the principle of "substantial approximation ＆ contact ＆ exclude reasonable explanations".In judicial practice,the judgment of "contact" and "exclusion of reasonable interpretation" generally only needs authentic,legitimate and relevant evidence to prove,while the judgment of "substantive similarity" is the key and difficult problem in the trial of cases.Firstly,due to the technical characteristics of computer software,it is quite different from other copyright objects in the process of substantive approximate judgment,because it will involve the intersection of many professional and technical issues and legal issues.At the current stage,such compound talents are scarce in China,and the research on this issue is still in the preliminary stage.Secondly,computer software has the characteristics of complex expression and many constituent elements,which makes it difficult to clarify the comparison object and its range;In the meantime,it is not easy to modify and delete the evidence,which often leads to the difficulty of the "substantial judgment" and the difficulty of the realization of the burden of proof.Finally,a unified and clear "substantial approximation" judgment method has not been formed so far,which also hinders the trial process of such cases.Based on the judgment problem of "substantial approximation" of computer software,starting from the case statistics in recent five years,this paper analyzes the cases in recent five years,and then summarizes the main difficulties of substantive approximate judgment deeply analyzes the causes of the existing difficult problems of substantial approximation judgment,and gives the following suggestions for improvement in combination with problem analysis and drawing on the advanced experience of the United States: first,cultivate compound talents,To solve the key problems of cross complexity of technical and legal issues;Second,put forward a relatively clear identification and comparison object and scope for reference;Third,put forward a computer software protection platform based on blockchain is proposed to facilitate the investigation and evidence collection;Fourth,put forward a relatively clear and specific judgment method is proposed to apply the judgment of substantive approximation.In order to further protect the fair and healthy development of the software industry.