The Relationship Between Open-Source Licenses and Software Copyright

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Theoretical Level: How Open-Source Licenses and Software Copyright Coordinate Under the Legal Framework

Open-source software licenses, such as MIT and GPL, do not legally conflict with software copyright. Instead, they complement each other. Under China's Copyright Law and related regulations, computer software is protected by copyright law as soon as it is created. The author enjoys a series of rights, including reproduction, distribution, and modification. Open-source licenses operate precisely within this legal framework: in essence, an open-source license is the copyright holder granting part of their software copyright property rights to the public for conditional use through a contractual arrangement. In other words, open source does not mean abandoning copyright or placing the software into the public domain. Rather, the copyright holder uses the disposal rights granted by copyright law and opens the source code by defining usage conditions through a license.

Article 8 of China's Regulations on the Protection of Computer Software expressly provides that a software copyright holder may license others to exercise their software copyright and has the right to receive remuneration. Article 18 requires that a license contract be concluded when licensing others to exercise software copyright. Open-source licenses are a special type of license contract that satisfies these legal requirements. When a copyright holder publishes source code with an open-source license statement, that act can be regarded as an "offer" to an unspecified public. Anyone who uses, copies, modifies, or distributes the code in compliance with the license terms can be regarded as having made an "acceptance", thereby forming a contract. Therefore, open-source agreements such as GPL and MIT have been recognized by Chinese courts as conditional software copyright license contracts, whose validity is protected by both contract law and copyright law. Unlike ordinary authorizations, open-source licenses are usually bilateral: they grant licensees the freedom to use, modify, and redistribute the software, while also requiring licensees to perform specific obligations, such as preserving copyright notices or open-sourcing derivative works. This conditional license creates no legal conflict. On the contrary, when a licensee violates the license conditions, they lose the corresponding authorization under the license, and the copyright holder may claim infringement liability according to law. For example, GPLv3 explicitly provides that if a user fails to comply with conditions such as source-code disclosure when distributing or modifying code, the authorization automatically terminates, and any continued unauthorized use constitutes infringement. It can be seen that the "viral" terms of open-source licenses are essentially conditions subsequent in the field of copyright, and they are legally recognized and enforceable.

It should be emphasized that the fundamental reason open-source software can be "open" is that the author retains copyright and uses copyright-law mechanisms to empower the public. Chinese judicial practice has gradually established this understanding. As early as 2021, China's first GPL-related open-source license dispute appeared. In the "Dianxin Desktop" case, the court held that the defendant's failure to perform GPL open-source obligations caused the license to terminate and required the defendant to bear copyright infringement liability. More recently, in a second-instance judgment involving GPLv2, the Supreme People's Court further stated that internationally common open-source licenses such as GPL have legal effect in China, and the parties' autonomy of will exercised under those licenses should be respected. The Supreme People's Court held that properly handling the relationship between open-source licensing and copyright protection both aligns with the national policy direction of encouraging open-source community building and balances the open-source ecosystem with developers' rights and interests. It follows that, at both theoretical and legal levels, there is no conflict between open-source licenses and software copyright. Copyright law provides the rights foundation and legal tools, while open-source licenses operate as copyright license contracts within that framework. The two are highly compatible and mutually coordinated.

Practical Level: Software Copyright Registration and Open-Source Software in Mainland China

In practice in mainland China, open-source software can also apply for software copyright registration. Chinese copyright law adopts the principle of automatic protection: software copyright arises automatically when the work is completed, and registration is not a condition for validity. However, copyright registration helps determine ownership and provide evidence for rights enforcement, so regardless of whether software is open-source, authors may handle computer software copyright registration through the Copyright Protection Center of China. Current regulations, such as the Measures for Computer Software Copyright Registration, do not exclude open-source software registration and do not impose special restrictions based on the type of open-source license. Registration authorities mainly examine the completeness and formal requirements of application materials. They do not focus on which open-source agreement the software adopts, and license types such as GPL, MIT, and Apache do not affect acceptance or approval of the registration process.

Applying for software copyright registration usually requires providing materials such as a software summary, source-code excerpts, and the completion date, while the applicant declares that they own the software copyright. It is worth noting that this copyright registration is an administrative act of rights confirmation conducted without changing the software's open-source status. The registration certificate only serves as preliminary proof of ownership. It does not grant the applicant additional rights beyond those provided by law, nor does it alter the software's existing open-source license authorization. Some commentary points out that open-source code is protected even without registration, but registration has publicity and presumptive effects and can serve as evidence of the right holder's identity in disputes. Therefore, as long as the applicant is indeed the original author or lawful right holder of the open-source software, software copyright registration is legally permitted and feasible.

One issue to watch for is that, in practice, a small number of people have maliciously exploited the registration system: they registered open-source software developed by others as their own work, then used the registration to file infringement lawsuits against large numbers of downstream users for profit. Because registration certificates have preliminary evidentiary effect in litigation, defendants often need to produce evidence to overturn the authenticity of the registration. Since many judges and lawyers are unfamiliar with technical details, this kind of improper rights enforcement can be deceptive. In response, courts have become increasingly cautious. A recent judgment of the Supreme People's Court clearly discourages improper profiteering through bulk software copyright registrations plus litigation, requiring full examination of the authenticity of ownership and the plaintiff's standing. Chinese courts have also explored solutions for open-source projects involving contributions from multiple people. For example, in "Luohe Company v. Fengling Company", although the open-source project had multiple contributors, the court held that the project initiator had control over the overall project, that the software did not constitute a collaborative work in the legal sense, and therefore allowed the project manager, as the registered right holder, to independently bring a copyright enforcement lawsuit. This precedent shows that in open-source software registration practice, right holders should ensure they have lawful original rights to the registered software. If a project involves code contributions from others, the respective ownership of rights should be clarified within the license framework, for example through contributor license agreements, to avoid ownership disputes. Overall, mainland China allows and supports copyright registration for independently developed open-source software and imposes no additional administrative restrictions. But registration is only proof of ownership and does not affect the external licensing effect of the open-source license. Once software is released under an open-source agreement, registration does not take back the license rights already granted to the public.

Developer Perspective: Compatibility Between Open-Source Release and Software Copyright Registration

From a developer's perspective, releasing software under licenses such as MIT or GPL does not conflict with applying for software copyright registration. The author of open-source software remains its copyright holder and owns all copyright rights granted by law, merely using a license to open up part of those rights for sharing. In fact, "open source" and "copyright" are two different concepts. An open-source license defines the conditions under which others may use, modify, and distribute the software, but it neither transfers nor extinguishes the author's copyright. As the industry often emphasizes, open-source software by no means means giving up copyright. Rather, it uses copyright to authorize others to use the software freely under specific conditions. Therefore, even if developers choose permissive open-source agreements such as GPL or MIT to release software, they still fully retain copyright in that software and have the right to register or assert those rights according to their needs.

Specifically, developers can apply for software copyright registration at the same time as open-source release to establish themselves as the original copyright holders. This is quite common in practice. Many authors of open-source projects keep copyright notices and obtain rights certificates through registration to prepare for proving ownership in future infringement disputes. Once others violate the terms of an open-source license, such as failing to comply with GPL source-code disclosure obligations or deleting copyright notices in violation of the MIT License, the developer, as copyright holder, has the right to bring a rights-enforcement lawsuit. At that point, the registration certificate can serve as strong evidence to help prove the developer's rights foundation in the software at issue. Similarly, registration does not weaken the authorization effect of the open-source license toward third parties. As long as a third party complies with the license terms, the developer is bound by the contract and may not arbitrarily revoke the granted open-source usage rights. In other words, copyright registration is a means for developers to protect their own rights and interests, while open-source licensing is a means of external authorization. The two can operate in parallel without conflict. Precisely for this reason, the authorization terms of open-source licenses are usually designed to be irrevocable and continuously effective. As long as the licensee complies with the agreement, the developer cannot unilaterally terminate the license already obtained by others because of registration or other reasons.

It should be noted that software copyright registration is essentially voluntary. Failure to register does not affect a developer's rights in the work; it only means one less piece of evidence. Many independent developers may choose not to register and rely solely on copyright notices and open-source agreements in the code to assert rights. In that case, the legal effect of the open-source license and the author's right to enforce rights under law are still unaffected. It is just that, in a dispute, the developer may need to prove authorship through code preservation, notarization, and other methods. Therefore, for prudence, developers releasing open-source software should keep evidence proving the completion time and originality of creation, such as version-control records, public repository commits, or copyright registration for officially recognized proof of rights.

Overall, after developers release software under open-source licenses such as MIT or GPL, they can still, and have the right to, apply for software copyright registration. There is no legal conflict between the two. Open-source licensing allows software to spread and be used widely, but developers remain copyright holders and can strengthen their rights through registration and other means. As professional commentary puts it, "open source and intellectual-property protection are not opposed; they are balanced through reasonable strategy." Developers can fully practice the open-source spirit while using copyright law to protect their achievements. Choosing an appropriate license, preserving necessary copyright notices, and even adopting dual licensing for core code are all common practices. Regardless of which open-source agreement is adopted, using software copyright registration and open-source release in parallel does not affect the validity of the open-source license. As long as both parties comply with the license terms, the open-source authorization will continue to operate legally and effectively. For developers, this means they can enjoy the benefits of open-source collaboration and dissemination while legally retaining recognition and protection for their own creations. This compatible and inclusive model is the legal foundation for the healthy development of the open-source movement and a concrete embodiment of China's legal encouragement of "opening code while protecting rights".