(By You Yunting) We could find no regulation in China’s Copyright Law and Regulation on the Protection of Computer Software with regard to the open source software. In a dispute judged by Haidian People’s Court in the 1st instance and Beijing No.1 Intermediate People’s Court in the 2nd instance, though both courts determined the validity of the open source agreement, they supported those violating the GNU GPL as failed in disclosing newly added source code could claim the copyright over the new work. To our understanding, the case, on the one hand, had showed the pragmatism of China courts, and on the other hand, it also demonstrated that the open source software organization is necessarily to be seen in the right protection on the OSS software.
In a software copyright infringement caused after defendant left the company, the plaintiff filed the lawsuit in the court. The defendant established a company after his service for the plaintiff and used the plaintiff’s software to design websites for the client. The defendant argued that, the plaintiff’s software was developed based on the open source agreement of GNU GPL, and modified on DNN. Also as required by GNU GPL agreement, the plaintiff shall publish the source code of its software, and then any one could use it as he wishes. The court investigated that the plaintiff’s software was developed based on DNN of GNU GPL agreement, and yet it finally judged the plaintiff could claim the copyright over the software as its source code has not been published, and the defendant has infringed the plaintiff’s right.
The reasons of the judgment are: 1. The OSS agreement reflects the true willingness of the publisher and the user, and its content has not violated any regulations in the law, and therefore it shall be effective in the law. The failure of the user to follow the agreement could only be seen as breach. If the open source software publisher claims the contractual rights, the user shall take the breach liability.
2. The plaintiff’s software contains the original content, and is modified and followed up developed based on the OSS software and commercial software, which could be seen as the derivation of the original work. During the derivation, the creator has also contributed its original effort, and therefore it has combined the new work with the original work, and that is kind of new derivative work. The original software content is kind of work in the Copyright Law, and the copyright holder may license or prohibit others using it.
3. The plaintiff’s software is the new one created based on the OSS software and commercial software, and its recreation has not gained the full license of the original work’s copyright holder, which is the illegal derivative work. To develop new derivative work based on the original work, it shall gain the approval from the original right holder, or otherwise it would constitute the breach or infringement against the original right holder.
But the illegal derivative work is not kind of new work, and in addition to the originality of the original work, it also includes the originality of work conclude within the recreation work. A derivative work implies two distinct creation processes, one from the original work and the second from derivative work. The illegality of the derivative creation process do not prevent the work to be protected if originality is found in it.
The second instance court confirmed the opinions of the 1st instance court, saying that:
“The plaintiff’s software for itself is kind of illegal derivative work, but is from creative activity. Since the plaintiff has devoted the creative labor, and the plaintiff could claim copyright over the software, then it has the right to ban others use it. Thecourt will not support the argument of the defendant that the plaintiff’s software shall follow the GPL agreement as it is kind of OSS software, and using by the third party shall not constitute the infringement.”
I. The case also showed pragmatism of China courts. Logically, the opinions of the court is not established, and since the court has admitted the validity of the OSS agreement, then anyone using that OSS software shall follow the agreement. Any breach of the agreement would lead to no legal protection on its software. The impact of this judgment encouraged those breaching the agreement or infringing others’interests, respecting the copyright coming from the work created from the agreement breach. That would damage the protection on OSS software.
To our understanding, the court may conclude its decision for the practical use, and in current more than 90% OSS software is devoted by foreign developers, and Chinese companies have made very few contribution. Therefore, it would produce less influence on the domestic industry once no sufficient protection could be granted on the OSS software. At the same time, the court needs to protect the domestic competition, and China’s domestic developers have been commonly seen for their law-breaking use of the software. Despite the plaintiff has violated the agreement in the case, it has devoted kind of creative labor, if it is not protected, then the competition order in China would be influenced such a precedent.
II. The OSS organization need to enter China to improve the open source software protection. In the case, once the OSS organization like Free Software Foundation could participate in the lawsuit as the third party, who has interests with the facts involved in the case, or file another lawsuit accusing the plaintiff in the lawsuit has breached the OSS agreement or violated the copyright of the OSS software developer. The OSS software protect could benefit. If the Free Software Foundation participates in the lawsuit, both the plaintiff and the defendant have infringed its rights, and then it has the right to publish the source code of the software as per the GPL agreement. The court would also been supported, and that would help regulating the widespread agreement breaches against the OSS agreement among Chinese software developers.