Nongye tushu qingbao xuebao (Aug 2023)
Open Source Software: A Study on the Copyright Licensing Investigation System of DMCA in the United States
Abstract
[Purpose/Significance] The development of open-source software and its system in China is relatively slow compared with the United States. However, given the current development status and needs, it is urgent to establish a sound institutional mechanism to provide feasible solutions for the development and protection of open-source software, and leave sufficient space for addressing potential risks. [Method/Process] Comparative research methods were used to examine extraterritorial systems and reflect on the current situation in China. By examining the reasons for the emergence, and the controversies formulated of the copyright licensing investigation system in the United States, and analyzing the content of the system, it can be seen that the system aims to investigate potential infringement of open-source software, and strives to balance the development and protection of open-source software. On the contrary, there is a gap in China's legislation, and the legal status of open-source software copyright has not yet been established, let alone specific institutional provisions on the implementation subject and authority design. [Results/Conclusions] It is necessary to learn from the copyright licensing investigation system in the United States. Based on the actual situation in our country, we can establish the legal status of copyright protection for open-source software based on the lawsuit of intellectual property infringement in the Civil Code of the People's Republic of China, referring to the open-source software protection model established in the Welte v. D-Link case and Harald Welter v. SiteCom case in Germany, by clarifying the legal effect of open-source software, incorporating copyright protection, allowing infringement lawsuits, and stipulating the right to request information from the rights holder. In terms of specific institutional provisions, the subject of copyright licensing investigation rights can be temporarily determined as the copyright administrative department at or above the prefecture (city) level. After the development of relevant public welfare organizations such as the Open Source Foundation is mature, some or all of the powers may be delegated to third-party public welfare organizations according to the situation. Furthermore, the rationality and legality of the investigation and the application of qualified sponsors are taken as the premise of the investigation, the type of equipment under investigation is limited to the legally obtained equipment, the investigation of potential infringement of open source software is regarded as the only investigation object, and the proper handling and protection after the investigation is taken as the requirement to ensure the legitimacy of the investigation, in order to complete the authority design of the investigation subject, and the localization construction of the copyright licensing investigation system will be achieved in the end.
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