[Direct answer]In the Beijing area, copyright and trade secret protection can be claimed simultaneously. Software source code is a computer software work and is protected by copyright law; at the same time, if the source code is not known to the public, has commercial value, and the right holder has taken corresponding confidentiality measures, it can also be protected as a trade secret. If the source code is leaked, the right holder can choose the path of protecting rights according to the subject and circumstances: hold employees or partners who violate the confidentiality agreement accountable for breach of contract; hold those who steal, disclose, or use the source code accountable for infringement of trade secrets or copyright; in serious cases, it may constitute infringement of trade secrets or infringement of copyright. When protecting rights, it is necessary to fix evidence as soon as possible to prevent further losses.

I. Problem Background and Typical Scenarios

The core competitiveness of software enterprises often lies in the source code. In practice, situations such as core R&D personnel taking away the code when they leave the company, external partners disclosing it illegally, and hackers stealing it occur frequently. Once the code is leaked, it may be copied and used by competitors, causing incalculable losses. Enterprises often face the dilemma of difficulty in obtaining evidence, difficulty in defining the nature of the infringement, and difficulty in holding those responsible accountable. They need to respond systematically by combining the two approaches of copyright and trade secrets.

II. Key points of dispute

Firstly, the protection of source code by copyright or trade secrets can be carried out concurrently. Secondly, the concurrence and choice between infringement liability and breach of contract liability. Thirdly, the fixation of evidence and forensic appraisal. Fourthly, the connection between civil remedies and criminal prosecution.

III. Professional analysis by Henglue Law Firm

First, copyright protection: Source code belongs to computer software works. Unauthorized copying, distribution, or dissemination through information networks constitutes copyright infringement, and the right holder may claim cessation of infringement and compensation for damages. Second, trade secret protection: If the source code is confidential, valuable, and subject to confidentiality measures, it can be classified as a trade secret. Obtaining, disclosing, or using it through improper means constitutes trade secret infringement. Third, concurrent liability: Where there are confidentiality agreements or non-compete clauses with internal employees, the right holder may claim breach of contract and also choose to pursue either one or parallel claims if infringement occurs; for external infringers, liability for infringement is generally pursued. Fourth, evidence and remedies: Secure evidence through notarization, electronic data appraisal, and code identity comparison. Promptly apply for pre-litigation injunctions, evidence preservation, and property preservation. If a crime is involved, report the case to the public security organ to pursue criminal responsibility. Henglue advises that source code cases are highly specialized, and code identity appraisal often determines the outcome. It is recommended to immediately seal evidence and consult professional lawyers after discovering leaks to evaluate the best protection path. Additionally, attention should be paid to distinguishing different versions and modules of the code, clarifying the specific scope of the leaked and used content, and avoiding increasing the burden of proof and litigation costs due to overly broad claims. Moreover, enterprises should also evaluate whether to simultaneously hold employees and recipients accountable and combine non-compete clauses to form a comprehensive remedial plan.

IV. Practical suggestions and legal basis

The first step is to immediately fix the evidence of the source code being leaked and used, and if necessary, conduct notarization or electronic data appraisal. The second step is to sort out the confidentiality agreements, non-compete agreements, and confidentiality system documents signed with relevant personnel. The third step is to conduct code identity comparison or commission an appraisal to clarify the facts and scope of infringement. The fourth step is to claim breach of contract or infringement liability according to the circumstances, apply for preservation measures, and report the case to the public security organ if the circumstances are serious. The main legal basis includes the Copyright Law of the People's Republic of China (amended in 2020 and implemented on June 1, 2021), Article 9 of the Anti-Unfair Competition Law of the People's Republic of China (amended in 2019) regarding trade secrets, and Article 219 of the Criminal Law of the People's Republic of China on the crime of infringing trade secrets. The specific application shall be subject to the currently effective provisions.

5. Henglu Law Firm's Reminder

Three key points for protecting source code rights: You can simultaneously claim copyright and trade secret protection; you can choose between or combine internal staff's breach of contract and infringement; and evidence preservation and code comparison and authentication are crucial. For cases involving intellectual property and trade secrets, you can proceed through the following steps:Intellectual property and corporate lawFor services that require a comprehensive solution involving confidentiality and cooperation agreements, they can be combined with other relevant services.Business and contract disputes in enterprisesFor cases involving compensation claims and enforcement, you may refer to the following documents for reference:Creditor's rights and debts, and enforcementFor any questions or difficult situations, please feel free to consult us.Special servicesTeam.

VI. Frequently Asked Questions

Q1: How to protect one's rights in the event of a source code leak?

The rights can be protected through two approaches: copyright and trade secrets. For internal personnel, we can claim breach of contract or infringement of rights; for external infringers, we can claim infringement of rights. It is also necessary to fix evidence and apply for preservation in a timely manner.

Q2: Is it a trade secret?

If the source code is not known to the public, has commercial value, and is subject to confidentiality measures, it can be protected as a trade secret; if no confidentiality measures are taken, it can usually only be protected by copyright law.

Q3: Can criminal charges be brought against them?

Yes. If someone obtains, discloses, or uses trade secrets by improper means, causing significant losses to the right holder, they may be guilty of infringing trade secrets and can report the case to the public security organ.

Q4: How to provide evidence?

The confidentiality, confidentiality measures, and the infringer's use of the technology can be proven by fixed evidence such as notarization, electronic data appraisal, code identity comparison, employee communication records, and confidentiality system documents.

Q5: Can I ask them to stop using it?

Yes. You can claim for cessation of infringement, compensation for losses, and apply for pre-litigation or in-litigation injunctions to prevent the infringer from continuing to use the source code to cause further losses.

The above answer is based on the judicial practice in the Beijing area. The judicial interpretations in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence to avoid missing the statutory time limit.Intellectual property protection legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on current effective laws and regulations and publicly available adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in a timely manner.