Have you or your company come across the so called ‘Mulan Licenses’, and, do you know how such licenses regulate the use of the specific OSS code that your engineers might be interested in using for your company or customer product?
If you believe that the OSS movement has not reached China yet, you might be interested in hearing the following.
China’s involvement with OSS
Based on publicly available information provided by the Open Chain Project in collaboration with the Linux Foundation we conclude that the Chinese region has been involved with Open Source Software since at least 2006.
The work related to open source software in China has been mainly driven by the Chinese Electronic Standardization Institute (the ‘CESI’), a public institution directly under the Chinese Ministry of Industry and Information Technology. The CESI has been supporting the development of the Mulan Licenses in collaboration with Chinese academia (such as the Peking University) as well as various domestic industry partners such as Huawei, ISCAS, ZTE, China Mobile, CM Soft, and Primeton.
Chinese OSS licenses
The CESI website presents 6 OSS licenses, all of which have apparently been officially released. We are listing these licenses as follows without any particular order:
1. Mulan Permissive Software License v2 (Mulan PSLv2)
2. Mulan Public License v2 (Mulan Publ-2.0).
3. Mulan Open Works License Attribution , Version 1.
4. Mulan Open Works License Attribution-PatentLicensed, Version 1
5. Mulan Open Works License Attribution-ShareAlike, Version 1
6. Mulan Open Works License Attribution-PatentLicensed-Share Alike, Version 1
The Mulan PSLv2 passed the Open Source Initiative certification in 2020. In 2021, more than 10000 domestic projects have supported the Mulan PSLv2. Some examples of applications for this license are OpenEuler, OpenGauss, Ark Compiler, XIOUS etc.
Closing the language gap
Perhaps not surprisingly, one of the reasons why China has initiated the development of domestic OSS licenses has actually been the language barrier and related risks.
All Mulan licenses listed above are bi-lingual and available in a Chinese and an English version. Moreover, each of these licenses makes it explicitly clear that both versions have the same legal effect, though this assurance becomes relative considering the additional legal nuance in the licensing text that the Chinese version will prevail in case of a conflict between the English and the Chinese version.
All traditional OSS licenses are written in English. There are typically no translations in other languages provided. This can create issues in certain regions and countries especially where English is not necessarily a preferred or primary business language. Besides, it is rather challenging to get an accurate and reliable translation of legal documents, and, if not done properly, there is a heightened risk that legal concepts will be either misunderstood or wrongly applied by market players.
A similar approach has been also taken by the European Community with the establishment of the European Union Public License v1.2. This was done primarily to support EU markets and countries like France or Germany in bridging and overcoming the language gap.
Removing IP uncertainties
Apart from general risk mitigation, another reasons why China saw a need for a domestic OSS licensing regime was the need to tackle uncertainties related to certain IP provisions, especially in the area of trademark and patent licensing. And indeed, the Mulan licenses do present a rather clear-cut approach for the question whether a patent and/or a trademark license is granted, the respective scope of the license grant, and also the scenarios under which the IP license is deemed revoked or terminated or can be terminated by the licensor.
Compatibility
Two of the above mentioned Mulan licenses, i.e. the Mulan Open Works License Attribution ShareAlike v1 and the Mulan Open Works License Attribution-PatentLicensed-ShareAlike v1, explicitly address their compatibility with other OSS licenses. How? The license text includes a hyperlink to a list of licenses that have been officially approved by the Mulan Community as compatible. Unfortunately, the information provided under the link is only available in Chinese. Even though a list is provided, for non-Chinese companies it would therefore require additional translation to fully understand the scope of compatibility for these two licenses.
At the same time, the question regarding compatibility seems rather clear for the Mulan PSLv2 as a permissive license. The CESI states that its terms are similar to the BSD licenses and that it has therefore a good compatibility profile. With that, it would follow that for example code licensed under the Mulan PSLv2 could be contributed to OSS code under Apache v2 or GPL v3 etc.
Copyleft
When looking at the licensing terms of all above mentioned Mulan licenses, clearly the Mulan Public License v2.0 would stand out as the one most likely to be categorized as a typical OSS copyleft license. According to the CESI, this license is ‘highly infectious’ and it includes ‘restrictions on the distribution conditions of emerging technologies such as SaaS’. When reviewing the licensing terms there is no explicit language related to emerging technologies in general or SaaS specifically. The only reference to a potential cloud application appears in the definition of ‘Distribution’ which refers to ‘provide online services to users, such as the act of providing online services through a cloud service platform’. In order to fully understand the scope of this license and the reach of its copyleft effect, companies will have to rely on formal legal advice from a Chinese licensed attorney.
Bottom Line
The Mulan licenses will continue to determine and co-shape the OSS landscape and movement. Companies should be aware of the Mulan license regime and consult with their legal representatives regarding their potential business impact especially when choosing to collaborate in an OSS project that adopts any of these licenses or prior to consuming OSS code packages comprising or containing components which are released under a Mulan License.
Your mOSS team
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