Our lawyers are consulted by netizens of the open source software issue, and the following is the detail of the consultancy:
1. A question about the lawsuit object. Why the lawsuit concerning the open source software as a joint works shall be the necessary colitigation, and demands the participation of all the authors?
A: Please check the following regulation, several opinions on the application of China Civil Litigation Procedure Law by supreme people’s court.
56. When the joint property is damaged by others and some owner choose to file the lawsuit, the rest owners shall be listed as the colitigant.
58. The people’s court shall notice the parties related when adding the necessary colitigant. The should added plaintiff states his/her substantive right may not be added; for the party reluctant to participate the lawsuit as well as to abandon its substantive rights, it may be added as the joint plaintiff while whose absence shall not influence the hearing and decision of the people’s court.
Article 14 of the exposure draft of Copyright Law:
Where other persons infringe the copyright of cooperative works, any cooperative creator may raise a lawsuit in his own name, but compensation obtained shall be reasonably divided between all cooperative creators.
Once the aforesaid regulation comes into effect, the individual author of the open source software could solely sue the infringer.
2. For the GPL, the any right protection concerning the GPL, could it be the lawsuit for infringement or the violation against software license agreement or the competition of both?
A: To our understanding, the lawsuit is better filed by infringement, under which there only demands the proof of the program using under the open source agreement, while the lawsuit for violation requires the demonstration of agreement signing which is easily to be stroke back with the defense that no such agreements have been signed or the software code is gained from the third party.
3. As to the reverse engineering or decompilation, if it’s not prohibited in the software license agreement and the object code has not be put under any measures against the reverse engineering or decompilation, then will such conduct violate the China Copyright Law?
A: The technology breakthrough for personal study will not constitute infringement by China laws. And the code writing after the reverse engineering which may lead to a new code or different expression is also not the infringement in China. But any use of the open source software for commercial purpose which also violates the open source agreement to copy the code directly, then such conduct shall be deemed as the infringement. The key is that the open source agreement is for conditional license rather than the right abandonment.
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Author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.
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