ENFORCEABILITY OF ANTI-REVERSE ENGINEERING CLAUSES IN SOFTWARE LICENSING AGREEMENTS: THE CHINESE POSITION AND LESSONS FROM THE UNITED STATES AND EUROPEAN UNION'S LAWS

Current laws related to intellectual property (IP) protection, especially those meant for protecting copyrights and trade secrets, afford certain strong protections for software programs. However, all IP laws have their limits set by legislators purposefully, to maintain a sound balance between private monopoly rights and public interest. To deal with these limits, software companies frequently include certain restrictive provisions in software end-user licensing terms. The anti-reverse engineering clause is a typical example of companies' efforts to supplement IP protections for software programs. The enforceability of these terms is a critical issue because they disrupt the balance intended by IP laws. This Article discusses the position of China on the enforceability of anti-reverse engineering clauses and finds that the Chinese position is too uncertain. By drawing on insights and policy considerations from the United States and European Union positions, this Article argues that the one-size-fits-all approach is inadequate for China and that an intermediate approach would be a more appropriate alternative. Specifically, it contends that the Chinese law should be reformed to include clear provisions allowing limited contractual bans but disallowing total bans on reverse engineering programs. Moreover, a miscellaneous provision should be included to address the rapid development of this industry and deal with an unpredictable future landscape. © 2022 University of Pennsylvania Law School. All rights reserved.