Jacobsen v. Katzer and the Comparative Lessons
for Chinese Copyright Reform
DONG Hao & TANG Qing
"Open source software" is not merely a technological concept but also a legal term because they are defined not merely with the openess of the source code but also with the authorization and the limitation of the specific legal rights. The focus of the Jacobsen v. Katzer lies on the nature of the Artistic License. If it were a nonexclusive license which merely requires the plaintiff fulfilling contractual covenant, the preliminary injunction for the copyright infringement would not be applicable. Only when the requirements to the users in the License confirmed some condition of authorization, the Artistic License and other similar license authenticated by Open Source Initiative would be safe in the context of the US law. The denial of moral rights in the US copyright law increases the risk of software developer if they choose the open source licenses. By contrast, technically and occasionally, the Chinese copyright system will not hinder the bona fide authors when they wish to waive some property interests. The existence of moral rights (but still statutory rights) safeguarded the validity of open source licenses as copyright authorization. However, this is only an undersigned benefit of Chinese copyright law during its transplantation from multiple legal systems. The conventional wisdom even does not realize this comparative advantage when they report the Jacobsen v. Katzer. Therefore lessons in the legal reform should be drawn before felicitation.
Keywords: open source, preliminary injunction, moral right, copyright
The full-text is in Chinese, and is published at China Copyright, 2009 No. 2.
Jacobsen v. Katzer案评述：中美版权制度差异对开源协议性质的影响及启示
[摘要] 由于涉及权利的授予和限制，“开源软件”是一个法律与技术相交融的复合概念。Jacobsen v. Katzer案的焦点是开源许可协议条款的法律性质，只有认定这种条款是一种版权授权的前提条件而非版权弃权后的合同上义务，才能满足原告的目的。由于美国版权法不承认精神权利，开源软件开发者较难保障自己的利益，降低了其采用开源方式传播知识的动力。相反，开源协议在中国著作权法中却面临较少障碍。这对中国的著作权法改革过程中，如何减少不必要的制度移植和弯路，有重要的启示。