A Study On The Legal Issues In Intellectual Property Of Open Source Software

Originally, open source software (OSS) development was a kind of group activities initiated by some software enthusiasts on a small scale, purely in pursuit of software freedom and not for economic return, which was characteristically to challenge, under the existing Intellectual Property System, against the restraint imposed by Intellectual Property Law over OSS freedom. With the success of its commercialization, chronically emerges the conflict of interests and value between OSS and traditional private commercial software. OSS has been squeezed into a predicament of Intellectual Property, which shackles its further advancement. As such, how to pull out of this predicament has appeared to be a critical academic study subject in order to advance OSS in China and override the monopoly of developed countries in software industry.In the first chapter, this thesis unfolds with a survey into the very concept of Copyleft underlying OSS and then moves forward to identify its distinctive licensing practice under this concept in contrast to that of traditional private commercial software as well as the nature of this practice. On this basis, the first chapter further analyzes the relation lying between OSS and Intellectual Property System, which is a unity of opposites, contradictory but interdependent, in an effort to reveal the bearing of OSS to Intellectual Property System itself and lay out a theoretical case for the subsequent analysis of intellectual property issues and risks confronting OSS.The second chapter thoroughly looks into the copyright nature that OSS bears and under this premise the ownership of the derivative works of OSS is discussed. Open source softwares with different licenses, open source softwares and private softwares, these usually overlap, which may lead to confusion in ascribing the ownership of the derivative works of OSS. This confusion could, furthermore, arouse a series of issues, such as whether an open source software may be closed and if so, how to define the ownership and liability of the future works, and how to ascribe the ownership and liability of an open source software in the case that it contains codes from a third party, etc. Through all the foregoing efforts in this chapter, the predicament of OSS under the Copyright Law reveals itself.The third chapter takes a perspective that patented softwares have become a mainstream world-widely to illustrate the threat posed by software patents to OSS and to analyze the two major kinds of patent risks that OSS is faced with. Facing these risks, the OSS communities proactively take a variety of counter measures, however, under over-strict intellectual property protection for patented softwares, these measures have appeared to be not enough for OSS to fully survive the threat but to reduce it to some extent. The contradiction remains.With the study of the intellectual property predicament of OSS in the above chapters, this thesis observes that the fundamental cause for the existence of this predicament lies in the fact that OSS can be totally differentiated from traditional software in terms of their nature, and that the current Intellectual Property System tends to regulate them as the same. Based on this observation, the fourth chapter, among other things, endeavors to bring up a set of legislation suggestions with respect to such issues as to protect OSS through legislation in form of special law, to perfect the existing Intellectual Property Law so as to strengthen the OSS protection, etc.