The GNU General Public Licence, like a large proportion of other documents relating to the distribution of open source software and free software, is conceived as a document intended for global use. Regardless of this intention, however, the private law relationship between the provider and the acquirer of a specific computer programme, or other licensed subject matter, is always governed by the specific legal order of a particular state - the so-called applicable law. The determination of the applicable law in the relationship between the provider and the acquirer (user of the computer programme) is therefore a fundamental prerequisite for being able to assess at all the conformity of specific licensing terms with a particular legal order, for example with Czech law, and for being able to comprehensively assess the rights and obligations of the provider and the acquirer of this licence. The provisions contained in the licensing terms constitute only part of the rights and obligations of the parties to the legal relationship and, for example, questions not expressly regulated in these licensing terms are governed by the provisions of the specific legal order.
The obligational legal relationship, the main content of which is formed by the GNU GPL licensing terms, will be governed by Czech law particularly in cases where this relationship does not contain a foreign (international) element (throughout the text we proceed from the assumption that valid contract formation has occurred between the parties). This therefore concerns particularly legal relationships arising between Czech persons, for example in cases where the author of a computer programme, a Czech citizen, “places” his computer programme on a server in the Czech Republic and another Czech person makes a reproduction of this programme. Czech copyright law must be applied to all uses of computer programmes which occur on the territory of the Czech Republic (the so-called principle of territoriality), regardless of the status of the subject using this computer programme (a more detailed explanation regarding the applicable law in the use of a computer programme exceeds the scope of this article).
In the event that the legal relationship between the provider and the acquirer has a certain connection to multiple states, it is necessary to determine which applicable law governs this relationship, whereby this applicable law shall be determined according to the rules of private international law of the state in which rights are being adjudicated. If, for example, proceedings (judicial or arbitral) were commenced in the Czech Republic regarding a dispute arising from the provision of software under the terms set out in the GNU GPL (and the legal relationship contained a foreign element), the applicable law would be determined according to Czech Act No. 97/1963 Coll., on Private International Law and Procedure, as amended (hereinafter “the Act on Private International Law”).
In legal relationships relating to software licensing agreements (as in other obligational legal relationships), Czech private international law, specifically the Act on Private International Law, permits choice of law - see the provision of Section 9(1) of the Act on Private International Law, which states that “the parties to a contract may choose the law by which their mutual property relations are to be governed; they may do so even tacitly, provided there is no doubt as to the expressed will in view of the circumstances.” The choice of law, which in this case is the decisive factor according to which it is determined by which legal order the obligational legal relationship is governed (the choice of law is therefore a so-called connecting factor). Freedom of contract regarding choice of law is logically not unlimited and is possible exclusively in relationships with an international (foreign) element and is therefore not possible between two Czech entrepreneurs in their business activities in the Czech Republic. Freedom of contract regarding choice of law is also “limited” by the fact that the parties may choose only the existing legal order of a particular state and by the so-called public policy reservation. The issue of public policy reservation and the issue of choice of law in relation to consumer protection, which in our view cannot be entirely excluded even in the case of software distribution, exceeds the scope of this article.
However, as already mentioned above, the intention of the authors of the GNU GPL was to conceive this document as far as possible as universal or globally applicable, and the GNU GPL thus contains no provisions on choice of law (similarly to other documents relating to the distribution of open source software or free software). In the distribution of software “under” the GNU GPL, therefore, in the vast majority of cases in practice a situation arises where the parties to the obligational legal relationship have not chosen the applicable law, and the applicable law by which the relationship of these parties will be governed must thus be determined according to other facts, other connecting factors.
According to the provision of Section 10(1) of the Act on Private International Law, “if the parties do not choose the applicable law, their relations shall be governed by the legal order the application of which corresponds to the reasonable arrangement of the given relationship.” (This concerns reasonable arrangement in the sense of determining the applicable law and not in the sense of reasonable regulation of legal relationships between the parties.) In the following paragraph of this provision, specific contract types are then set out, with the provision that decisive facts (connecting factors) are established therein which are generally to be used for the reasonable arrangement of the given relationship for these individual contract types. A licensing agreement for a copyright work (computer programmes are also regarded as copyright works) is not expressly mentioned therein. In view of this, attention must also be paid to the wording of Section 10(3) of the Act on Private International Law, which states that: “Other contracts (i.e. contracts not expressly mentioned in paragraph 2 - author’s note) shall generally be governed by the legal order of the state in which both parties have their seat (domicile); if they do not have their seat (domicile) in the same state and the contract is concluded between persons present, by the legal order of the place where the contract was concluded; if it was concluded between persons not present, by the legal order of the seat (domicile) of the recipient of the proposal to conclude the contract.” Neither the first nor the second connecting factor mentioned in this provision is particularly practical for the field of open source software and free software - they thus come into consideration, for example, in local distribution in the form of boxed software. The third connecting factor mentioned in this paragraph - the seat (domicile) of the recipient of the proposal to conclude the contract (the recipient of the proposal may be either the provider or the acquirer) - is already conceivable for the distribution of software “under the GNU GPL”. However, this does not mean that in this way we would always arrive at the aforementioned “reasonable” arrangement.
With regard to the above, the theory of private international law states that in the case of licensing agreements it would be more appropriate generally to proceed from the seat of the acquirer of the licence as a “reasonable” connecting factor, since the economic reason for concluding such a contract is the use of the software by the acquirer, which may also have important significance for the provider. However, there are also contrary views, namely that the connecting factor should conversely be the seat (domicile) of the provider, which in the case of mass distribution of software “under” the GNU GPL appears more “reasonable”. For example, a provider who provides licences to software via the internet would find himself in a very difficult situation, as his legal relationships would be governed by different legal orders depending on where individual users downloaded (made reproductions of) his software. Moreover, if the licence is provided gratuitously, the possible ascertainment of the content of different legal orders on the part of the provider could represent truly “unreasonable” costs. However, the question of “reasonable arrangement of the given relationship” must be assessed in each specific case separately.
In conclusion, it may therefore be stated that the applicable law in obligational legal relationships (including licensing agreements based on the GNU GPL) shall be determined according to the rules of Czech private international law (in cases where Czech jurisdiction is given). Obligational legal relationships arising from contracts with a foreign element are governed by Czech law in cases where the determination of Czech law as the applicable law occurred on the basis of connecting factors, or the application of Czech law corresponds to the reasonable arrangement of the given relationship (regarding individual connecting factors see above). Naturally, obligational legal relationships arising from licensing agreements between Czech subjects are also governed by Czech law, including relationships based on the GNU GPL licensing terms.
This text was translated from Czech to English using an AI translator.