Intellectual Property Issues In Open Source Software

Today, Software Industry is playing a more and more important position in IT Industry and becoming a key symbol of science and technology level of a nation. So, many countries have attaching attention to the IP protection for software. In no less than half century, IP protection for software has experienced great changes. There had no protection to software or had less protection by commercial secret only in the past. But now, software has protected powerfully from varies aspects by commercial secret, trade mark, copyright, patent, etc. No doubt, IP Laws have contributions to encourage innovation of Software Technology and promote development of Software Industry. Yet, our IP laws are developing in an irrational way, violating the fundamental purpose of IP system and breaking balance between the owners of IP rights and the public. When the strength of monopoly overwhelms the strength of free competition, the purpose of IP protection for software promoting Software Industry is dim and doubtable. Given birth to the conflict of monopoly and free competition, Open Source Software(OSS), has been developing and becoming more and more powerful.From anti-copyright to commercialization, The Open Source Movement gives us much inspiration. Through analyzing the relationship between OSS and the current IP system ,we would not only obtain many references and considerations but different means to mend IP system from researching IP right regulation, commercial mode of OSS and the idea of The Open Source Movement.This article includes three parts: preface, text and conclusion. In the part of preface, the author introduces the idea of the Open Source Movement; the challenges which OSS brings to IP system for software; the crisis of IP infringement which OSS is facing to and the considerations which OSS gives IP system for software protection. The part of text consists of five chapters.In the first chapter, the author introduces classical of software according to copyright; definition, origin and development of OSS. In the second chapter, the author analyzes, through the combination with trademark system, OSS protects character of"Open Source"and the requirements of using certification trademark of OSIA according to Trademark Law of PRC.In the third chapter, taking GPL for example, the author analyzes relationship between OSS and copyright; influences which OSS brings to copyright;crisis which OSS is facing to.In the fourth chapter, compared with the development of software patent in USA, UN and China, the author analyzes the causes and the risk of patent infringement which OSS is facing to.In the fifth chapter, the author analyzes the considerations which OSS brings to the current IP Laws at two aspects: the idea of IP and the cost of obligation.Based on the analysis to the development of OSS, the author concludes that IP regulations of OSS develop the useful and discard the useless of the current IP Laws.