A Study Of The Conflict Of Rights In Open Source Software

The contractual nature of open source licenses has been clearly recognised in China’s judicial practice,as open source software determines the attribution of rights and their flow through open source license agreements and contributor agreements.As open source software is based on the creation of previous software programs,the copyright ownership of its works is complex and has the dual attributes of a collaborative work and a compilation work.Therefore,it is extremely easy for conflicts of rights to arise in subsequent development and use,including conflicts of rights between subsequent developers and managers of prior development projects,conflicts of rights between developers and users,and conflicts in the confirmation of software rights.There are three main reasons for these conflicts: the basic rules governing open source collaboration are the open source licence agreement and the contributor agreement,which are both contract-based and within the scope of private law autonomy;however,software is also an integral part of the technological architecture of the network society,and countries may add some core fundamental open source software to their control lists in order to achieve national security and foreign policy goals.This has led to a situation in which the free exercise of individual rights is not compatible with the free exercise of rights.This leads to a conflict between the free exercise of individual rights and the regulation of national security.And because the laws of the country in which the controller of an open source agreement is located do not ipso facto extend to subsequent continuing developers of open source programs,but the agreement itself is accepted by subsequent developers of open source software,this also raises the question of the law applicable to the interpretation of the agreement.Second,open source software as an open collaboration model under the product,there is its copyright and control rights vested in the subject,"network product security vulnerability management provisions" of Article 7,can not complete the open source software use of the subject into the vulnerability reporting obligations of the subject,in the absence of external mandatory legal constraints,the enterprise itself is difficult to have the incentive to invest energy and financial resources to do a good job of compliance.Thirdly,in the confirmation of the rights of open source software,the unique development mode of open source software determines the openness and accessibility of open source software code,which does not exclude that in some cases the registration applicant will apply for registration by appropriating the open source code of a third party for his own use,the software copyright method does not make a clear description of the registration matters,and the registration certificate also lacks a comprehensive and clear record of the software information.In judicial proceedings,there is no clear explanation as to what kind of evidence can be used as "contrary evidence" to overturn the validity of the copyright registration certificate.In order to resolve these three conflicts,the following countermeasures are proposed: First,to implement the outline of a strong intellectual property right and strengthen the development of independent open source business to resist export control.Second,improve enforceable measures under the cyber security law,clarify the subject of open source software compliance obligations,and improve the information sharing mechanism of the open source software supply chain;at the same time,form a binding mechanism for enterprises to use open source software compliance through national legislation and government through law enforcement.Through the implementation of standards to promote when enterprises export software to the outside world,can meet the various issues raised by the intellectual property and network security team,while giving certification to enterprises that comply with the standards.Thirdly,improve the relevant systems involved under the copyright law,improve the software copyright registration system,clarify the allocation of the burden of proof in open source software litigation,and clarify the key points of judicial decisions in open source software litigation.