| As an important link in China’s “14th five-year plan”,open source software has attracted extensive attention in recent years,especially open source software.The 2021 “Luo He Case” is a typical case of copyright infringement of open source software,and the discussion of copyright infringement of open source software caused by the case is the origin of this paper.Open source is a kind of open and shared software development mode.The spirit of open source is open sharing,and the open source rules are the open source licenses that apply to it,the main problems of copyright infringement are as follows: the ownership of open source software,the rules of judging copyright infringement,the way of assuming tort liability,and how to regulate and protect open source software in our legal system.First of all,for the ownership of open source software copyright,China’s judicial practice and academia think that open source software should be defined as a cooperative work,but the reference to the legal definition of the type of work,which does not meet the constitutive requirements of cooperative work,combined with the overseas academic point of view,the compilation works more in line with its open and shared collaborative development model,but also to solve the subject of tort litigation qualified.Secondly,in view of the problem of copyright infringement judgment of open source software,because it is regulated by both copyright law and contract regulation,therefore,we should not only rely on the rule of “Contact + substantial similarity”,but also combine the principle of “Separate procedure” in open source license to define the scope of software derivative works,and then combined with the principle of fair use to determine the tort.Thirdly,for the open source software copyright infringement liability,the current judicial cases in our country,in most cases the tortfeasor is ordered to pay damages,this way of assuming responsibility does not match with the spirit of open source.By using for reference the way of injunction relief and fulfilling the obligation of open source in the case law of foreign countries,it provides a reference for the judicial trial of our country,perfect the relevant rules of Intellectual Property Act preservation in our country,avoid the infringement of open source software being difficult to regulate because of strict preservation conditions.In view of the object of open source software in the field of Law of our country,it is just like “Little Lotus just shows its sharp point”,it can play an important role in perfecting the regulation path of copyright infringement of open source software in China,so as to promote the development of open source software in China and achieve the integration of law and open source development. |
