Highlight: Although the OSS is the legal works protected by Copyright Law in China, there has promulgated few legal regulations on it. In this essay, you could know the method to protect the OSS by the current laws and regulations.
It has shown up an increasing trend to open the source code in the intellectual property practices of the world software industry, which is remarked in China by Microsoft’s decision to open part of its operating system code to China government. The protection over open source software is still a legal practices field with little specified regulations in China. However, on the other hand, most important software of China’s own intellectual property is developed on the opened source code and subject to the restriction of the OSS License. Bridge IP Commentary will introduce you the protection over the OSS under current legal environment in China and its legal status.
I. The release of open source software is kind of a conditioned authorization
Although it’s available in source code form, the OSS is not designed for anyone’s free use. All OSS is released upon licensee’s acceptation of the License, which means the developer will only grant the license when user agrees the terms of the License. Bridge IP Commentary defines it as kind of conditioned authorization act, which varies on the Licenses. For example, any derivative code developed on the OSS under the GPL shall also be accessible to the public.
II. The analysis on the legal relationship between open source software users and developers
At present, the main legal basis for the protection over software copyright in China is the Copyright Law and the Computer Software Protection Regulations, while there’s still little regulations on the legal issues of OSS in them. But it is undeniable that the OSS shall be the “works” defined in the Copyright Law and protected by the two laws. Yet there’s still a question that how’s the legal effect of the License of OSS and its restriction on the users? For this, here comes the analysis from Bridge IP Commentary:
First, the copyright of the OSS is reserved for the developers and for their disposals; furthermore such right will not perish with the “death” of the software. To open the code of the OSS is one of the disposal measures of the author, and the License shall be legally binding once it complies with laws.
The licensed releasing of the source code is to make a genuine manifestation of intent with condition attached to no specific person. Anyone using the software shall be deemed as his/her acceptation on the Terms of the License, including the limitation of the OSS. Take GPL as the example, all the derivative code developed by the licensees shall also remained opened to the public.
In summary, it is a breach of contract shall the user fails to follow the OSS License, also it constitutes kind of infringement. But according to Chinese law, any lawsuit initiated by the developer can only choose either breach or infringement as the cause of the action, which difference is that the claim of continuous performance of the License, like to open the derivative code, could be made in the lawsuit of breach, while only stop using is claimable in infringement litigation.
III. Could the unopened part against the License be protected by the Copy Right Law
When the licensed developer violates the License refusing to open the source code, shall the unopened part be protected by the Copyright Law? For this argued question, by the opinion of the author Mr. Luo Yanjie, such violation produces the liability to the other party of the License instead of damaging any third parties’ legal interests, and the licensed developer shall still be the copyright holder of the unopened part, any decode of such part shall infringes the right of the licensed developer. Surely this is for our views only, if you have any opinions, your comments on our page or emails are appreciated.
Author: Mr. You Yunting, Attorney-at-law of Intellectual Property
Partner of DeBund Law Offices, Shanghai, China
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900
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