Abstract：Open source software represents a model of open innovation, and its copyright governance should embody the principles of knowledge flow and knowledge sharing. The characteristics of open innovation in the context of open source software can be summarized as follows: First, the development process of open source software is inherently open. Second, open source software generates unprecedented market opportunities and value through the flow of knowledge. Finally, the community of developers engaged in creating open source software is dynamic and adaptable. Moreover, the unique traits of open source software give rise to distinct features in its copyright governance. For instance, the elevated threshold for developer participation often results in acute copyright challenges based on technical contributions. Within the peer-to-peer innovation framework, the exchange of knowledge among software developers and contributors flows in different directions. The original creators of open source software typically exemplify an outbound innovation, while the contributors are more aligned with an inbound perspective. This divergence leads to variances in copyright emphasis within open source software, necessitating corresponding focuses in copyright governance: the former prioritizes infringement regulation, while the latter underscores equitable benefit sharing. Besides, open source agreements function as open license agreements, reflecting a commitment to efficient knowledge circulation and dissemination. However, in practice, there exists a notable disconnect between open source software, open innovation, and the intellectual property system. This disconnect has led to a series of judicial complications, including ambiguity as to whether open source software is a sole or collaborative work, improper allocation of ownership interests, and inappropriate legal remedies. Existing judicial cases demonstrate that courts hold disparate views on whether software developers and contributors operate consensually or qualify as co-authors, indicating a prevailing ambiguity in the practical understanding of these issues. Additionally, courts often interpret General Public License (GPL) agreements as contractual arrangements subject to termination conditions, frequently misunderstanding the termination clauses and mistakenly viewing breaches of contractual obligations as triggers for contract termination. In fact, in practice, the use of open source software under the GPL agreement does not continue to publish the software in violation of the agreement's obligations (Article 4, Article 5), rather than the termination of the contract (Article 8), and can not directly lead to open source agreement termination. Moreover, courts typically prioritize the cessation of infringement as the primary remedy, often defaulting to this as the standard course of action. However, such an approach effectively halts the dissemination of knowledge, contradicting the fundamental intent of open innovation, and is therefore not the most effective pathway to relief. To address these issues, we should develop a framework for copyright governance in open source software that aims to reduce transactional friction, rooted in the principle of distribution according to contribution, and with the ultimate goal of fostering knowledge flow. Specifically, we propose the following measures: First, starting from the implicit assumption that open source software qualifies as a sole author work, exceptions are allowed to be retained. Second, a mechanism for the equitable distribution of rights and interests should be established, allowing software developers to retain copyright while contributors share in the benefits based on their contributions. Third, a remedial approach that “Continued performance of contract/no cessation of infringement in exceptional circumstances + damages” should be pursued.
吴汉东 高婧. 试论开放式创新视角下开源软件的版权治理[J]. 浙江大学学报(人文社会科学版), 0, (): 1-.
Wu Handong Gao Jing. On the Copyright Governance of Open Source Software under the Perspective of Open Innovation. JOURNAL OF ZHEJIANG UNIVERSITY, 0, (): 1-.
