About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

10 IFOSS L. Rev. 1 (2018)

handle is hein.journals/ifosslr10 and id is 1 raw text is: 






GPL-3.0 in the Chinese Intellectual Property Court in Beiiing


     GPL-3.0 in the Chinese Intellectual Property

                                Court in Beijing


                                Lucien  CH.  Lin,a Navia Shen,b
                            (a) Legal Adviser, Open Culture Foundation; (b) IP Counsel,
                                     Huawei Technologies Co., Ltd.


                                  DOI: 10.5033/ifosslr.vl Oil.126



              Abstract
              With the increasing use of Free and Open Source Software (FOSS) in
              the world, the licensing issues and disputes regarding such licenses have
              been litigated in various jurisdictions. In the past, these lawsuits were
              concentrated in Europe and the United States, but less so in the Asia
              Pacific region. However, in 2018, the specialized Intellectual Property
              Right Court in Beijing, China, acting as a court of first instance, issued
              a decision in a software copyright infringement lawsuit related to FOSS.
              The defendant chose to invoke the copyleft mechanism in the GNU
              General Public License 3.0 (GPL-3.0) license as a defense against
              claims of copyright infringement. Although the court did not directly
              interpret the GPL license at this stage, the decision strongly implies that
              the GPL and the other FOSS licenses can be treated as valid in China.
              Even so, quite a number of details regarding the use of the GPL in
              China still require clarification, included as to how the license can
              substantially be enforced and implemented.



              Keywords
              Copyleft, GPL, derivative work, copyright infringement




Although  most of the academic  opinions are positive, many commentators   and practitioners did
have doubts about whether  a Free and Open  Source Software  license written in English could be
enforced legally in China. After all, in 2014 the China Open Source Software  Promotion  Union
(COPU)2   once published a draft of COPU Open  Source General License Agreement  V.1.0.3 The
text of COPU  1.0 was written purely in Simplified Chinese language and was meant to be used as an
alternative solution in China for Chinese Free and Open Source Software projects. The COPU  1.0
actually was not used in any released Free and Open Source Software project due to the resource
limitation for project development, and this license lasted only at the stage of public comments.
However,  the draft and publication of the COPU 1.0 reflected concerns as to whether Free and Open
Source Software  licenses written in foreign languages could be enforced in full in China without

1  As discussed in YANG XIA, Introduction to Software Protection under Chinese Law, http://ifosslawbook.org/china/,
   Section Analysis of FOSS Under China Law.
2  http://www.copu.org.cn/about [retrieved June 2018]
3  https://www.oschina.net/news/52060/coup-license-comment [retrieved June 2018]


1


International Free and Open Source Software Law Review


Vol. 10, Issue 1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most