Governance of multi-authors and Open Source collaboration projects: Best practices and legal tips. Michel Jaccard l Juliette Ancelle

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1 Governance of multi-authors and Open Source collaboration projects: Best practices and legal tips Michel Jaccard l Juliette Ancelle

2 Outline of today s workshop What are we talking about? What are the main issues related to the governance of multi-authors and Open Source collaboration projects? What can be done? Case studies 2

3 What are we talking about? 3

4 And who is talking anyway??? 4

5 So, again, what are we talking about? 5

6 Main Open Collaborative Projects (OCP): Open Source Software (OSS) projects: Apache Software Foundation, Mozilla Foundation, etc. R&D and knowledge-sharing projects: The Human Genome Project, Wikipedia, industrial or technology consortium, standard setting bodies, etc. 6

7 Open collaborative projects as opposed to more traditional creative work efforts IP laws have been designed around the idea of one single creative mind: Mozart, Shakespeare, etc. But today, most projects result from a collective effort So, what distinguishes Open collaborative projects from any other big scale project? 7

8 Definition of Open Collaborative Projects: Users network openly sharing their design efforts for everyone to use Collective efforts and individual contributions Each participant does a portion of the work but benefits from the value of the entire work Benefit from others improvement and modifications. 8

9 [The main] Characteristic [of Open Collaborative projects] is that participants use private ordering to construct a public knowledge good. Dan Wielsch, Governance of Massive Multiauthor Collaboration 9

10 What is Project Governance? Provides for a decision-making framework Defines participants responsibilities and accountabilities (creation, management, monitoring, etc) Allows exchange of information. 10

11 What are the main issues related to OCPs? 11

12 Main practical issues Massive and uncontrollable number of participants for the development of one project Long-term projects: Continuous updates and improvements of the project Difficulty to keep track of all participants / contributors. Cross-border projects: lack of control Funding / sale of project Enforcement of rights. 12

13 Main legal issues International nature of OCPs = different applicable legal regimes No unified set of rules applicable to the project Nunerous legal fields impacted: IP laws, contract laws, corporate laws. 13

14 Main legal issues (cont d) IP rights issues: Multi-authors = joint work (see article 6 Swiss Copyright Act or joint works pursuant to section 101 of the US Copyright Act) Does each co-author detain a copyright on the joint work? Which law is applicable? General system in copyright laws of unanimous agreement of all co-authors for the governance of the work (not a majority) practically impossible in mass multi-authors projects New issues relating to software patenting? 14

15 Main legal issues (cont d) Private International law issues: What law is applicable to the project? Which jurisdiction in case of conflict? Special local protection competition, etc.)? rules (consumers, Privacy issues. Contract law issues: Who is party to the project? Is there a contract law relationship? Who is accountable of what towards whom? 15

16 Main legal issues (cont d) Corporate law issues: Who shall get funding for the project? How (equity/debt)? Who can give representations / warranties? Who can act? Who holds representation powers? Ex: IFOSS Law Review Who can sue? Who can be sued? Employment law issues: Duty of loyalty Ownership of IP rights on the employee s work? 16

17 Attested needs Need for centralization of rights on the project to overcome some legal issues Need for minimum quality standards Need for governance on the general project to allow its development 17

18 What can be done? 18

19 1. When launching the OCP = Adoption of project governance framework 19

20 Legal governance for OCPs 3 main types of governance rules : Access & use = need for participants to access and use the technology/outcome of the project Policy = need to regulate the standards for the participation in the project and provide for sanctions against infringement Amendments = need for rules to amend the access, use and policy rules to adapt to the environment. 20

21 Legal governance for OCPs Access = No legal access regime by default: each project has its own access rules If no access rules are adopted = general IP rules applicable Legal regime: no access, modification or use unless authorized by right holder Necessity to hold the rights in order to adopt access rules. 21

22 Legal governance for OCPs Several types of access rules = Apple s App Store vs. Android platform (Open Source) Copyleft : obligation for users and participants to make the work available, even after a modification Numerous Open Source/Open Access projects use copyleft: GNU GPL, MIT license, CC-by-sa. 22

23 Legal governance of rights Policy rules = Purpose of general public good: need to establish minimum standards for the project Need for compliance of users/participants with general applicable rules Need for sanctions in case of infringement Benevolent dictator Example: Wikipedia s Five pillars, internally generated by users. 23

24 Legal governance of OCPs Amendment rules = Adaptation of access and policy rules to the external legal environment Compatibility issue: different types of open source or open access licenses not always compatible 24

25 2. When the OCP already exists = Licensing 25

26 Assignment of rights to Free Software Foundation (FSF): nonprofit with a worldwide mission to promote computer user freedom and to defend the rights of all free software users FSF provides for mandatory assignment of rights in OSS projects FSF is the only entity that can license the work Also has the authority for copyright enforcement. 26

27 Assignment Model of the Fiduciary License Agreement (FLS) developed by the FSFE: «The purpose of this agreement is to ensure the lasting protection of Free Software by making FSFE the fiduciary of the author s interests. It empowers FSFE and its sister organizations to uphold the interests of Free Software authors and protect them in court, if necessary.» Had to be translated into several languages and adapted to various legal regimes. 27

28 Case studies = Analysis of three existing projects 28

29 Business Model Generation Project? 29

30 Wikipedia General principle: users-generated and userscontrolled 5 pillars But, operated by the not-for-profit Wikimedia Foundation, which reserves certain legal rights Case of the Wikipedia GFDL CC license transition license transition to allow users to reuse content either under the GFDL license or the Creative Commons CC-BY-SA license. Lawfulness of Wikipedia s license transition? 30

31 Mozilla Project Mozilla = Open Source Project governed as a meritocracy Creation of a Mozilla Community Governance build around 3 main aspects: Definition or roles and responsibilities Transparency Reciprocity Policies 31

32 Future developments? WIPO Committee on Development and Intellectual Property: Recommendation 36 of the Development Agenda Approval in November 2010 of the «Open Collaboration Projects and IP-Based Models» Project Will analyze and compile existing models of Open Collaboration projects 32

33 Do you have questions? Juliette Ancelle 33

34 Do you want answers? Michel Jaccard 34

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