China

Chapter Editor: Yang Xia1

Introduction to software protection under Chinese law

Body of law

According to "The People’s Republic of China Copyright Law ", these regulations are formulated in order to protect the rights of the copyright owner of computer software,to adjust the relationships of interest in the development, dissemination and use of the computer software, to encourage the development and applications of computer software and promote the software industry and information technology development of the national economy.

The Software Act is the special law with respect to the general Copyright Act .This means that the general Copyright Act will apply to software, to the extent the Software Act does not contain any specific provisions.

Software Act: Object of protection

Computer programs (including the preparatory material) are protected by copyright and are equivalent to literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. According to article of the Copyright Law only original computer programs benefit copyright protection. This means that the computer program needs to be an own intellectual creation of the author. No other criteria may be used to determine whether the program can be subject to copyright protection. The ideas and principles behind computer programs or technical interfaces are explicitly denied copyright protection.

The term computer software (hereinafter referred to as software) refers to computer programs and related documentation.

This ordinance of the following terms:

(a) The computer program, is the code sequence, got by computers or other devices’ with the information processing capability, or the symbolic instruction sequence or symbolic statement sequence which can be automatically converted into a coded instruction sequence. The same source and target computer program process for the same work.
(b) Document, is text data and chart which can be used to describe the contents, composition, design, functional specifications, development, testing results, such as program design explanations, flow charts, user manuals and so on.

Software protection under these regulations must be independently developed by the developer, and has been fixed in a tangible object.

The bill of software copyright protection does not extend to the ideas used in software development, processing, and methods of operation or mathematical concepts as so on.

Authors/Beneficiaries

This ordinance of the following terms:

(a) Software developer, is the legal person or other organizations who take the responsibility of the actual organizational development, direct development and software development; or the natural person who takes the responsibility of the independent software completed by their own effort.
(b) Software copyright owner, is the natural persons, legal persons or other organizations who enjoy the copyright in accordance with this regulation.

 

Chinese citizens, legal persons or other organizations enjoy the copyright in accordance with this regulation no matter whether their software is published or not. Foreigners and stateless persons, enjoy copyright in accordance with these Regulations if their software is first released in China. Foreigners and stateless persons enjoy copyright protection under these regulations if the developer or habitual residence of the State signed an agreement with China or the international treaties in accordance with China.

Software copyright belongs to the software developer, except for otherwise provided in this Ordinance. If there is the absence of proof to the contrary, the natural person, legal person or other organizations are the developers whose name is on the software.

If the software is developed by two or more natural persons, legal persons or other organizations, the co-ownership of its copyright is stipulated by the copartners according to a written contract. If there is no written contract or the contract is not clearly stipulated, the cooperative software can be used separately. And developers of their respective part can be entitled to independent copyright; however, the exercise of copyright shall not extend to the whole copyright of the overall development of the software. If the co-developed software can not be divided, the copyright should be shared by the co-developers according to their negotiation; if it cannot be negotiated or without any proper justification, any developer shall not prevent the other developers exercising their rights except the right of transfer, but the benefits should be distributed to all co-developers reasonably.

According to the second paragraph of the tenth piece in Article Copyright Law, if the copyright holders allow others to exercise the right, they have the right of getting paid in accordance with the relevant provisions of the contract.

Exclusive rights

Software copyright holders enjoy the following rights:

(a) right of publication

(b) Authorship

(c) The right of amendment

(d) Right of Copy

(e) Right of Distribution

(f ) Right of rental

(g) Right of Information Network Transmission

(h) Right of translation

Software copyright owner may authorize others to exercise their software copyright, and the right to receive remuneration. Software copyright owner may transfer all or part of its software copyright, and the right to receive remuneration.

Exceptions to Exclusive Rights

Owners of lawful copies of software enjoy the following rights:

(a) The need to install the software into the computer and other devices with the information processing capabilities;

(b) To prevent damage making backup copies, these backup copies may not be available for others to use by any means, and the owner shall destruct the copies if it loses ownership of the legal copies;

(c) To use the computer application software into the real environment or improving its functionality and performance to conduct necessary modification; however, except provided outside, without the software copyright owner can not support the modified software to any third party.

In order to study and research software inner design and principle, through installation, display, transmission, storage software or other ways to use software, may not get software copyright permission without payment of remuneration.

Authorize others to exercise proprietary software copyright; the parties shall enter into a written contract. If there is absence of a written contract or agreement without expressly exclusive license, the right to exercise to be treated as non-proprietary.

Article 30 of the Computer software protection rule explains in detail in which circumstances no authorization of the right holder is required to reproduce and/or translate a computer program in order to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs.

The law expressly provides that article 30 is compulsory law. Hence, contractual provisions to the contrary are deemed not to exist.

However, the exercise of these statutory rights is often difficult in practice because the licensee generally has no access to the source code of the application and it is not obvious to enforce access legally. This law 7th section the protection cannot expand to the software to develop the thought which, the concept the software uses, to discover, the principle, the algorithm, the treating processes and the movement method.

Dispute mediation

The software copyright infringement dispute may mediate the mediation inadequate or the mediation achieves the agreement latter side to renege on a promise, May to the People’s court prosecution. The litigant is not willing to mediate, may also directly to the People’s court prosecution.

Term of protection

The software copyright’s protection period is 25 years, cuts off publishes for the first time after the software 25th year on December 31. Before the protection expiration, the software copyright owner may apply to the software registration management structure to continue the exhibition 25 years, but the protection period is longest does not surpass for 50 years.

Special Measures

Has the right infringement software does not destroy when is insufficient to protect the software copyright owner’s rights and interests, the holder has the right infringement software which the duty destroys has, for this reason suffers the loss may to the right infringement software’s tenderer additional compensation.

Unprotected software and non-commercial software

Only software that is original in the sense that it is an intellectual creation of the author benefits copyright protection. Non-original software does not come into consideration for copyright protection and can. Besides has the agreement in addition, without this software copyright owner or its legitimate surrender’s agreement, do not provides the revision after any third party the text.

The classroom instruction, the scientific research, and the State agency performance of official functions and so on non-commercial character goal needs to make the few copies to the software, may not after the software copyright owner or its legitimate surrender’s agreement, not to its payment reward. But when use must explain this software’s name, the exploiter, and do not encroach upon the copyright owner or its legitimate surrendered other each right which enjoys according to this rule. After this replica use finished, must take care, the reclamation or the destruction properly, do not use in other goals or provide to other people.

Unprotected software and public domain software

Only software that is original in the sense that it is an intellectual creation of the author benefits copyright protection. Non-original software does not come into consideration for copyright protection and can, in principle, be used freely.

Under china law, public domain software is considered as software to which the author has given up all rights and on which nobody is able to enforce any rights. This software can be used, reproduced or executed freely, without permission or the payment of a fee. Public domain software can in certain cases even be presented by third parties as own work, and by modifying the original work, third parties can take certain versions of the public domain software out of the public domain again.

Software value can only be achieved through intellectual property. Under the general law of intellectual property: this value is presented by granting certain exclusive rights to the legal owner of the right and by contracts of the use of this right, also by sharing fruits to the public finally. Meanwhile software companies can recover the cost of investment in the early stage, and continue the development, upgrades and new product launches, and gain profits in the end. They can form a virtuous circle eventually to promote the industrial and economic development.

Commercial software and open source software (free software) in the sense of copyright law primarily differ in terms of their circulation mechanism in use. According to copyright, software can be roughly divided into three categories: commercial software, open source software (free software) and public domain software.

Comparison of different types of software1

types

Copyright protection

Provision of source code

Right of reproduction and transmission

Right of modification and deduction

payment

Commercial software

yes

uncertain

preserved

preserved

yes

Open source software

yes

yes

open

open

no

Public domain software

no

uncertain

open

open

no

Analysis of FOSS under china Law

Copyrights

As development of software, software development greatly differs from traditional creation. It is no longer subject to a single person or an organization. Coupled with the development of the Internet, very few people are still behind their closed doors in the software industry. Getting the predecessors’ and other’ advanced technologies and ideas becomes a crucial factor to the development of software technology.

Qualification of FOSS

Copyright law of the people’s republic of china on the protection of the works is "self-executing" principle; the creation is completed automatically subject to copyright protection, regardless of whether it is open to authors. Copyright law in China, to the public the source code of the rights belonging to the software’s "publication right" range. Protection mode of software copyright may be considered: law, together with the contract. This model of international conventions and national copyright laws are a clear manifestation of the protection of software copyright law in China is no exception, for example: in China promulgated a special copyright protection software, "Computer Software Protection Regulations," is provided in the third 10 without the copyright owner or his legal transferee’s consent, the use of software to define the problem of copyright infringement; in the "Computer Software Protection Regulations," the 18th, 19, the provision of software licenses and transfer of rights must the form of a written agreement. In this sense, protection of software copyright in China and international copyright norms is the basic synchronization.

Copyright law of the people’s republic of china: (Article 12 ) Where a work is created by adaptation, translation, annotation or arrangement of a pre-existing work, the copyright in the work thus created shall be enjoyed by the adaptor, translator or arranger, provided that the exercise of such copyright shall not prejudice the copyright in the original work. Interpretation of the author, on the original work for making works, should seek the consent of the original author and pay the remuneration in accordance with the provisions, while at the same time the original authors are still enjoying authorship, re-creation of the original work shall not be distorted, altered, etc., if the interpretation of the works of creators is exceeded the period of protection for works of art, you can do with the original author’s consent, while the non-payment of remuneration, but the original author of the authorship of the work shall not be violated, not distorted, tampering with rights shall not be violated. 2

Co-ownership of copyright works on the provisions of copyright law: (Article 13) where a work is created jointly by two or more co-authors, the copyright in the work shall be enjoyed jointly by those co-authors. Any person who has not participated in the creation of the work may not claim the co- authorship. If a work of joint authorship can be separated into independent parts and exploited separately, each co-author may be entitled to independent copyright in the parts that he has created, provided that the exercise of such copyright shall not prejudice the copyright in the joint work as a whole. The general considers that the creation of a work of joint authorship requires cooperation arrangement between the authors, if one party without the consent of the other, each other’s ‘ works in their own work, or on the other side of the work for making modifications, added a certain amount of respect that is after the work of the joint author, in this case, not only cannot be the work of the joint author, also violated the copyright of the work. The author of a work of joint authorship must be participating in the creation of man, who did not participate in the creation, cannot become the author of a work of joint authorship. The creation of the so-called “participation”, refers to works of ideas and expression of the form of a creative and intellectual work, or concept planning, or writes operation, if you do not have to pay for the work, the creative labor cannot become a joint author. Second, a work of joint authorship and copyright enjoyed by the cooperation of the author. 1. A work of joint authorship including can split use and cannot be split in two. First, you can split the use of a work of joint authorship, the author refers to cooperation on the respective part of the creation can be used separately, can be individually copyrighted (including personal rights and property rights). The second is the use of a work of joint authorship, although a joint author has its own creation, but in his works have been integrated, distinguish between a works which is part of a joint author. 2. The copyright of a work of joint authorship, the authors share, assign its rights and the exercise, you can determine by the cooperation agreement of the author. If there is no agreement or agreements are not agreed, the joint exercise of joint author. You can split the work; the right to modify it by writing was exercised. Authorize others to use and get paid for by the cooperation agreement for assignment, as there is no agreement or an agreement not to assign an equal share of press. We have talked about on the exercise of a work of joint authorship, is a joint author on the exercise of copyright, the author of all the cooperation required by consensus, without consensus, each joint author shall not be entitled to a separate exercise of the copyright of a work of joint authorship, the copyright of a work of joint authorship is joint author share. But at the same time, a joint author cannot abuse their rights, without a legitimate reason to block other cooperation influence the exercise of copyright, the author works of social and economic benefits of play. To this end, the regulation on the implementation of the copyright law, article 11 provides that: “Except where otherwise provided in this Law, the copyright in a work shall belong to its author. The author of a work is the citizen who has created the work. Where a work is created according to the will and under the sponsorship and the responsibility of a legal or entity without legal personality, such legal person or entity without legal personality shall be deemed to be the author of the work. The citizen, legal person or entity without legal personality whose name is indicated on a work shall, in the absence of proof to the contrary, be deemed to be the author of the work.3

Rights of the original co-authors

Unless the components of the software can be clearly distinguished, it usually concerns "indivisible works ". This concerns work whereby it cannot be concluded clearly what the individual contribution of every author is, e.g. when two authors write a text together.

Where a work is created jointly by two or more co-authors, the copyright in the work shall be enjoyed jointly by those co-authors. Any person who has not participated in the creation of the work may not claim the co- authorship.

If a work of joint authorship can be separated into independent parts and exploited separately, each co-author may be entitled to independent copyright in the parts that he has created, provided that the exercise of such copyright shall not prejudice the copyright in the joint work as a whole.

On the other side, if a work of joint authorship can’t be separated into independent parts and exploited separately, the copyright in the work shall be enjoyed jointly by those co-authors, in which case the authors are free to regulate the exercise of the copyrights by agreement. If they can’t reach any kinds of agreements relating to the moral rights and have no cogent reasons, No party shall prevent exercise of the rights except for the transfer request, but the proceeds should distribute to all the other.

Authors of derivative works

After some time FOSS will, in most cases, be a derivative work or a composed work. Derivative works and composed works are works the originality of which is supported on existing work(s), of which original characteristics are copied.

Where a work is created by adaptation, translation, annotation or arrangement of a pre-existing work, the copyright in the work thus created shall be enjoyed by the adaptor, translator or arranger, provided that the exercise of such copyright shall not prejudice the copyright in the original work.

The copyright in a work created by compilation shall be enjoyed by the compiler, provided that the exercise of such copyright shall not prejudice the copyright in the preexisting works included in the compilation. The authors of such works included in a compilation as can be exploited separately shall be entitled to exercise their copyright in their works independently.

So, the author(s) of the derivative or composed work are the only persons with a copyright on their work. This is an independent and full copyright, which is restricted, however, because the derivative or composed work cannot be operated without the consent of the holder of the copyright on the original work. For usual FOSS licenses this consent is not a problem, subject to respecting the terms and conditions (e.g. regarding further distribution of the derivative work).

The assignment of copyrights

In order to control the copyright situation better, it may be useful to collect all copyrights concerning a FOSS project within one organization. The existence of this organization will simplify the management and enforcing of the joint rights. The collective management of copyrights is usually, but not necessarily, regulated by the fiduciary transfer of copyrights. The ownership of copyright in a commissioned work shall be agreed upon in a contract between the commissioning and the commissioned parties. In the absence of a contract or of an explicit agreement in the contract, the copyright in such a work shall belong to the commissioned party.

Moral copyrights

FOSS originated in America, and therefore attaches less importance to the moral rights of the author. The Open Source Definition specifies that the author of software distributed under a FOSS license cannot oppose the use of the software by certain people and groups or for certain areas of application.

For example , according to article 22: In some cases, a work may be used without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be indicated and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced. Furthermore, article 23 specifies the statutory license of copyright.

 

Whether an author is able to give up all his rights on a work is quite tricky under Chinese law in view of the principal indefeasibility of the moral rights. Although renouncement of moral rights is possible in principle, the global renouncement of the future exercise of moral rights is void, also concerning moral rights on software.

The author of a work distributed under the FOSS license shall therefore probably be able to oppose any use of his work by people or groups or for certain purposes which affect his honor or reputation, based on his moral rights.

Moral rights are reflected in derivative works. The author of the original work will therefore, based on his moral rights, not only be able to oppose the use by third parties of his work, but also the use of derivative works which affect his honor or reputation.

Enforcing FOSS license

The question whether a FOSS license can be enforced depends on whether a valid license was issued. The essential questions are: (i) between whom is a license reached, and (ii) has the license been validly reached?

Contracting parties

A job may need one or more people to accomplish. Agreement concluded by the both parties. If one author makes his work available under a FOSS license, the answer is clear: the license is reached between the licensee and the author. But in some cases, the works are finished by different people and they are all contributed to the programs. At this time, the question becomes more complicated. With whom the licensee reaches a contract depends on the different cooperation ways by the co-authors.

If a work of joint authorship can be separated into independent parts and exploited separately, each co-author may be entitled to independent copyright in the parts that he has created, provided that the exercise of such copyright shall not prejudice the copyright in the joint work as a whole. In so far the author who created the independent parts and the licensee constitute the contracting parties based on the independent parties. And if a copyright of the joint work which can’t be used separately shall be owned by joint authors and exercised by unanimous agreement; where joint authors failed to reach an agreement and without reasonable reasons, any party may not prevent the other parties from exercising the side copyright except transfer right, but the gaining from exercising the side copyright shall be allocated to all joint authors reasonably. In this case the license is reached between the licensee and every author of the program.

Most FOSS licenses solve this through the following agreements such as BSD, Apache, GPL, LGPL and MIT. The GPL, for example, creates a contractual bond between the licensee and all authors in the chain. GPL version 3, for instance, contains the following clause: “Each time you convey a covered work, the recipient automatically receives a license from the original licensors, to run, modify and propagate that work, subject to this License” and GPL version 2: “each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor …”. In this way the user of the software obtains a license of all authors in the chain.

Validity of the FOSS licenses

An author chooses a FOSS license because he wants to distribute his work and make it available to others –possibly with certain restrictions. For him it is important that he can enforce these restrictions.

The common way of FOSS license is through the internet. And the conventional IT agreements are reached by the explicit acceptance of the terms and conditions by the licensee following the signing of the terms and conditions, by opening the packaging, by clicking or selecting an “I agree” button or by any other action from which acceptance can be deduced. These methods to reach a licensing agreement have been sufficiently tried and tested and, at least between commercial parties, are generally considered to be valid. In china, there is “The electronic signature law of the People’s Republic of China”, regulating electronic signature in the IT contract. However, that law is not very good in its enforcement. No doubt, FOSS licenses which were reached in the same way will have been validly reached.

Typically, in a FOSS environment, however, software is made available with the simple specification on a website or in the source code of the software that it concerns FOSS. The license usually does not need to be explicitly accepted. Having to click and confirm every time could in some cases interfere with the use of the software. The Open Source Definition opposes demanding explicit agreement with the license conditions with the aim of confirming the agreement between licensor and licensee.

The question is whether in these cases a valid license is possible. The answer to this question is affirmative. The reason for this is that the user of a copyright protected work needs to be able to indicate the grounds on which he is able to use the work. FOSS doesn’t mean no copyrights left for the authors. FOSS is still under the protection of present copyright law. So using the software without the author’s consent implies a copyright infringement. This implies that everyone who wants to use software which they find via the internet, needs to actively look for a license. If the user cannot prove he has a license, he must refrain from using it. Renouncement of copyrights is not suspected but needs to be proven. The mere availability of a work on the internet does not mean it becomes public domain.

It is doubtful whether a user would benefit from disputing the existence of a FOSS license. If the user disputes the conclusion of the FOSS license, this implies no legally valid copyright license was granted and the user therefore is not allowed to use the software.

Validity of the contract

Through the agreement to others, the authors can put limit, others violate the agreement must to assume responsibility. An author chooses a FOSS license because he wants to distribute his work and make it available to others –possibly with certain restrictions. For him it is important that he can enforce these restrictions.

Conventional IT agreements are reached by the explicit acceptance of the terms and conditions by the licensee following the signing of the terms and conditions, by opening the packaging, by clicking or selecting an “I agree” button or by any other action such as “next” can be deduced. These methods to reach a licensing agreement have been sufficiently tried and tested and, at least between commercial parties, are generally considered to be valid.

In China, for public welfare or only for personal use, people can accord to the principle of reasonable use, and the use needn’t conclude contracts or pay any remuneration. Except that, the authors and users must sign a contract for licensing. The contract should include licensing rights, the types of licensing right is exclusive or not, the scope and space of using, the remuneration’s standards and methods, the responsibility of breach of contract and the other sides think need.

In addition, the Regulation for Computer Software Protection in our country also provides that the licensing of software copyright shall be in possession of a contract for licensing. And the licensee may not exercise the right that has not been licensed by the software copyright owner in the contract for licensing.

Normally, developers and programmers in the FOSS write these open source software programs collaboratively under an open source license, which permits users to use, change, copy, and distribute these programs free of charge, provided that they follow the licensing guidelines of the software. Most commercial software doesn’t allow you to change a program and redistribute it — unless you specifically negotiate that in a license. If you make copies or distribute modified versions of the software without permission, you infringe the copyright, and you must take the responsibility. And if you use more rights over the scope of the agreement also implies a copyright infringement. This implies that everyone who wants to use software which they find via the internet, needs to have a license. If the user can’t prove he has a license, he must refrain from using it. Besides if a contract is not fair, or the user disputes the conclusion of the license, this implies the agreement is void.

Waiver and liability

Typically, FOSS licenses contain very strong exoneration clauses, which discharge the author from all liability. The reason for this is that FOSS is often made available without a fee, as a result of which the author generates insufficient income to pay for liability insurances and legal costs.

One can wonder whether these exoneration clauses comply with the general validity requirements under Chinese law. Due to there is no specific legal regulation of FOSS licenses. These requirements are scattered in Chinese civil law. As the article 53 of the contract law of PRC goes, the following exoneration in the contract is invalid. (i) that causes the personal injury, (ii) that causes property loss by intentional misconduct or gross negligence. Article 52 in the contract law stipulates: if only there is one of following state, the contract shall be invalid. (i) obtain the contract by means of fraud or stress, at the same time causes damage to the interests of the state.(ii) viciously collude, to damage the interests of the state, the collective, or a third party. (iii) use legal form to cover up illegal purpose. (iv) do harm to the public interests. And(v) violate the compulsory laws or administrative rules.

Generally speaking, if considering FOSS license as a specific form of civil contract, all the regulations of the contract behavior are available for the FOSS license. But, as we said above, FOSS license is very different from the typical contracts and there is huge vacancy in the legislation of FOSS, which increases the confusion. We suggest adding FOSS license as one special form of contracts in the contract law of PRC.

As we all know, our legislation doesn’t distinguish the guarantee liability between amateur and professional seller. As to FOSS license, it’s different. In so far the aforementioned conditions should be complied with; exoneration provisions will be enforceable in principle. Although the reasoning for exoneration is certainly valid for the amateur programmer, it applies much less for professional programmers who built their business model around FOSS. Professional suppliers of FOSS or related services often provide guarantees.

Theoretically, there is difference if the stipulating party be considered as a professional seller. The professional seller is deemed to know the defect in the software, and in pursuance of article 153 of the contract law of PRC, contractual provisions of non- indemnity for surface or hidden quality defects have no effect if the seller knew about the defect at the time of the sale. And article 150, the seller has the duty to guarantee non- right defects. The professional seller of FOSS will therefore be liable in principle, unless he can provide proof of invincible ignorance. In practice this proof will be hard to provide. Going further, we need make a standard to distinguish amateur from professional programmer. And the commercial model must be a essential factor to be considered.

The copyleft principle

Principle

A characteristic found in different (but not all) FOSS licenses is the so-called“copyleft” principle,which is a totally new and different way of enforcing copyrights of software. FOSS licenses which incorporate the copyleft principle, lay down by contract that everyone in the chain of consecutive users, in return for the right of use that is assigned, needs to distribute the improvements he makes to the software and the derivative works he makes under the same conditions to other users. In other words, software which incorporates copyleft FOSS,needs to be distributed in turn as copyleft FOSS. FOSS means sharing with each other, instead of monopolizing.

It is not possible to incorporate copyright protected parts of copyleft software in a proprietary licensed work directly. FOSS license is more like a civil contract with strict conditions, but less like a copyright enforcing behavior. It weaken copyrights somehow.

So the copyleft principle can restrict the commercial possibilities of the software. Sometimes warnings are issued for the dangers that companies run if a negligent or vindictive employee were to incorporate a piece of copyleft code in the code of proprietary software. In theory this could mean that the company would be obliged to make its proprietary software available under a copyleft FOSS license. Although caution is necessary, one can ask oneself whether these worst-case scenarios are realistic under Chinese law. Copyright protection is still strong and absolute in current Chinese legal system. The sanction for incorporating copyleft code in proprietary software will usually be restricted to a prohibition to distribute the software which is in breach or the obligation to remove this piece of code from the program. If the unlawful use has caused damage to the author, this damage will need to be reimbursed, but not more than they actually suffered damage. Compare with copyright, copyleft protection is fragile and far from enough. We should find a proper model to balance the copyright and copyleft.

Validity

The question relating to the validity of the copyleft clause coincides with the question whether an author is able to validly lay down how derivative works need to be distributed. The answer to this question is affirmative.

According to the provisions of article 12 of the copyright law ,the author of the original work has no rights on the derivative work,that’s to say “A work derived from adaptation, translation, annotation or arrangement of a pre-existing work, the copyrights belongs to the author of the derivative work which be operated doesn’t subject to the consent of the copyright owner of the original work, but the exercise of such copyright shall not infringe the copyright in the original work”.

The Visscher and Michaux phrased this as follows: “L‟auteur ou les auteurs de l‟oeuvre dérivée sont donc , pieds et mains liés‟ vis-à-vis du ou des auteurs de l‟oeuvre première”.

Based on copyrights the copyright owner or copyright-related right holder and an oasis are able to lay down the use of the work for a particular use, or link certain conditions to this.

This right to determine the destination of a work was recognized and based on an interpretation of article 9 of the copyright law of 27 October 2001. According to the rule, the copyright owner can determine the destination of a work, to copy or distribute, to rent or exhibitions, to performance or screening, etc. On the other hand they also can licensing or transfer the rights. Besides the oasis after the authorized can claim in its own name for copyright owners, and can carry on lawsuit and arbitration activities as copyrights owner.

The right to determine the destination not only applies inter partes, but“erga omnes”), provided that the third parties, in all reasonableness, should know what the destination is). The author can therefore lay down the copyleft condition based on his right to determine the destination of his work (4).

All rights are subject to abuse, including the copyright. An author can therefore not randomly exercise his economic and moral rights. A lawful tangible or moral interest needs to be proven.

Use others’ work, must be approved by the copyright owner and pay the remuneration, or constitute infringement). But licensing a work under a copyleft restriction will in principle not constitute an abuse of right, in other words, with “reasonable use”(6), you can make use of the work without the consent of the copyright holder also not pay the remuneration, which must not affect the normal use of works and have the damage of the copyright owner reasonable legitimate interests. But newspapers, periodicals, radio stations, television and other media has been published on the political, economic, and religious problems, if authors statement shall not be published, broadcast, then you can’t use the work as “rationally use”, or also constitute infringement. The licensing or assignment contract of the copyright owner has not explicitly licensed or transferred, you can’t randomly exercise the rights without the consent of the copyright owner, or will constitute infringement (7).

Similarly, open source software as a work, according to the relevant provisions of the copyright law, the developer must be enjoyed certain parts on the development of the source of the copyright. And a large open-source projects and release process requires a large number of developers, therefore, when the subsequent developers to develop staff code before release to copy, modify, and redistribute, can appear the copyright infringement.

Viewed formally, FOSS license is a format contract. According to the contract law, it is effectively as long as the parties to the contract signed voluntarily, and no violation of the mandatory regulation and it is legally only if the parties strictly in accordance with the law to exercise rights and perform obligations. The open source behavior does not mean the developer give up the copyright of the source code, therefore in order to avoid subsequent developers of tort, they shall take some legal measures to limit the copyright as soon as developers in the first release.

A legitimate moral interest could want to keep his work within the FOSS community, also in a derivative format. Companies which have constructed a business model around distributing software under copyleft restrictions will usually be able to prove a legitimate interest.

Damages

Damage caused by copyright violations are compensated under copyrights law in accordance with the general civil liability of the unlawful act. This implies that the injured party of a copyright breach needs to be compensated.

According to the provisions in article 47 of the copyright law: the copyright administration departments have the rights to stop the infringement, confiscate the illegal income, destroy the infringing reproductions, and may impose fines under the condition of infringing the public interests. If the circumstances are serious, also can confiscate materials, tools, equipment which be used for making infringing reproductions. Constitutes a crime, trespassers shall bear criminal responsibility.

According to the article 36 of the regulations of copyright law of 2 August 2002: trespassers who have violated the article 47 of the copyright law and also offended public interests, should be punished 3 times the following amerce of the illegal operational and be punished 10 thousand Yuan of the following amerce if the illegal operational is difficult to calculate by the copyright administrative departments.

Infringements of software copyrights follow the same regime as infringements of every other copyright(8).The aforementioned principle is therefore applicable in case of copyright infringements of software.

According to the provisions in article 23 and article 24 of the software protection regulations: all actions which have infringed the software copyright should hold civil liability as below according to the circumstance1. Stop the infringement2. Eliminate the effects 3 apologize 4 .compensation for the losses5. Civil sanctions.

FOSS means that software source code is the public intellectual property of the whole mankind, should be distributed freely between the person of preparation and application. Any restrictions of the intellectual property rights will eventually limite and obstruct its development.

Therefore certain legal theory (9)and case law(10)assume that the damage to the copyright owner will be limited, as he has made his work freely available via the internet.

The essence of FOSS is not free, but “thought sharing, knowledge sharing and resource sharing”. The user can freely operation, copy, distribute, research and improvement the software, and avoid the proprietary software intervening. when modify the program to make it better, more applicable, man can experience the excitement come from the work which be improved the efficiency.

Besides establishing a reputation and recognition with the related value creation, an author can have other reasons to make his work “freely available”. The author may also have a direct monetary advantage from the free distribution of his work. The simplest way is circulating the free works with advertising. Another way is granting specific services relating to the work. The free circulation of the work ensures the work has many users. The author generates his income from the provision of support and consulting services, or “licensing proprietary add-ons”. Another business model is the so-called dual licensing model. This model uses – as the name allows us to deduce- two different licenses. The first license is often a copyleft license. This first -free -license ensures the work is circulated quickly and has a wide range of users. A second license without the copyleft system can then be obtained against payment by interested parties who want to use the work without their own additions being affected by the copyleft principle.

FOSS Cases in China

No cases have been reported yet (June 2010).

1 Research report on the copyright of open source software and commercial software

2 http://www.copyright365.com/zixun/ShowArticle.asp?ArticleID=449

3 http://www.cipls.com/copyright/belong/0017.htm