What are the misunderstandings about software copyright transfer
"Software copyright transfer" means that the software copyright owner serves as the transferor and The transferee transfers all or part of the software copyright rights to the transferee by signing a transfer contract, and the transferee pays the corresponding transfer fee. The "Computer Software Protection Regulations" (hereinafter referred to as the current "Computer Software Protection Regulations") promulgated by the State Council (officially effective on January 1, 2002) are different from the old "Computer Software Protection Regulations" promulgated in 1991. Compared with the regulations, many places have made substantial changes. However, in current practice, there are still many misunderstandings based on old concepts. Several analyzes are listed below:
One of the misunderstandings: The software transfer contract must be in writing, otherwise it will be invalid
Article 20 of the current "Computer Software Protection Regulations" stipulates that parties must enter into a written contract to transfer copyright. Therefore, some people believe that any software transfer without a written contract will be invalid. The first thing to emphasize is: I have no objection to emphasizing the necessity of signing a written contract when transferring software copyright. Because software copyright transfer contracts are more complicated than general transfer contracts, the reasons are: 1. Signing a written contract can clarify the rights and obligations of both parties in writing and prevent unnecessary disputes; 2. The software transfer contract involves the subject matter of the transfer (whether the software is transferred in part or in full), the period of transfer (the software is transferred short-term or permanently), the price of the transfer andThe payment of the price (whether it is a one-time payment or the entire price in installments) and liability for breach of contract are generally not easy to clarify without writing, and are not conducive to the actual performance of the transfer contract.
However, it should be clear that whether to use a written contract to realize the transfer of software copyright falls within the scope of party autonomy and is entirely a private right. The legal provisions requiring written form are advocacy provisions based on the need to prevent and resolve disputes and are conducive to the performance of software transfer contracts. As for whether the parties are in writing, as well as whether they breach the contract and whether they perform the contract, they are within the scope of their rights to freely exercise their rights, and they shall bear their own responsibilities.
In practice, software transfers are overwhelmingly done in writing. Most, but there are also many oral forms of software transfer contracts, and many of them have been actually performed. Therefore, there is no need to force the parties to use written forms when transferring software; there is no need to resort to court when disputes arise when the parties do not use written forms. , it shall be deemed invalid.
Myth 2: Software transfer must be registered, otherwise Invalid
Article 20 of the old "Computer Software Protection Ordinance" Article 7 expressly stipulates that for software that has been registered, when the software rights are transferred, the transferee shall file a record with the software registration management agency within 3 months after the transfer contract is officially signed, otherwise it will not be able to fight against the infringement activities of the third party. This article once caused controversy in practice when it was promulgated and implemented: one view is that if the software transfer contract is not filed within 3 months, the transfer contract will not have legal effect, and even if it has been actually performed, it will not affect the invalidity of the contract. ; Another point of view is that although the software transfer contract has not been recorded, the transfer between the two parties to the software transfer contract has been legally effective, but it cannot be against a third party.
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