Restitution EOLE 2019 – Panel 3 : Organization and governance of a digital common

EOLE is an annual conference cycle with an international reach, and aims to encourage the pooling and dissemination of legal knowledge relating to open licensing as well as the development and promotion of good practices. An initiative born in 2008 out of the needs of practitioners in the field, EOLE aims to develop a legal doctrine dedicated to open source, with particular attention to the delivery of neutral and quality information. This year, EOLE took place in Marseille on October 16th.

Necessary for some, alternative for others, “digital commons” are becoming the new Eldorado in a society that is sometimes too technological and not human enough. This growing phenomenon is profoundly transforming the practices and uses of many fields: health, mobility, space, etc.

Panel 3 : Organization and governance of a digital common

The organizational modes specific to projects of commons must necessarily be representative of the communities and the issues related to these projects. In this sense, the governance of a common must integrate components of openness, flexibility, efficiency and sustainability. During this last panel, each speaker presented possible solutions to initiate and maintain a virtuous logic of governance of commons.

1/ Sustainability and legal structure: Two major challenges for the public sector on Free and Open Source Software projects

An open and project-specific governance is a key element for the sustainability of a community. Indeed, many digital commons have a relatively short lifespan, as they are designed in a short-term logic, with a limited number of contributors. Based on this observation, Malcolm presented the various steps to be taken to achieve open, shared and adequate governance within a sustainable community project.

The first step is to determine which legal structure (association, foundation, cooperative, consortium, etc.) is best suited to the governance of a common, and then to decide what its main functions will be. At this stage, it will also be necessary to detail the decision-making procedures (economic, technical, legal, and at the community level) within the structure, and to define the entities at the origin of the decision (bureau, board of directors, working groups, committees, etc.). Several characteristics are then essential for the governance of the common to be effective: the participation of the community in the decision-making process, the clarity and simplicity of governance, the flexibility or even the transparency of the structure are thus the key criteria of good governance. Finally, the legal management aspects, such as the attribution of a brand, the management of contributions or the choice of license for the code will all need to be clarified in order to achieve a balanced governance of the project.

On this basis, the city of Barcelona has been able to establish an open and efficient governance for the DECIDIM project by proposing, in particular, participation modalities adapted to each type of contribution. The developers of the project are thus bound by a public contract with the city of Barcelona, the actors supporting the platform act on a voluntary basis, while the other cities wishing to take over the project on their own are committed to fulfilling the conditions of the “social contract” proposed by DECIDIM. This mode of governance thus allows the project to continue to exist locally, while being reusable by other organizations in the future.

2/ Open Data and commons

The public Open Data regime and the Commons model are two related themes that deserve to be put into perspective to better identify their points of divergence and convergence.

First of all, the public Open Data regime and the Commons model diverge, particularly on the notion of governance. Indeed, the definition of the commons implies that it is subject to open and shared governance, whereas the entities at the origin of institutional open data generally operate with a top-down decision-making process driven by the state.

Another point of divergence is the right to reuse: the current open data regime, which stems from the European PSI (Public Sector Information) Directive of 2013 (2013/37/EU), stipulates that data sets can be reused for commercial or non-commercial purposes. This therefore allows a re-user to take credit for the commercial benefits resulting from the added value he has produced thanks to open data without paying these benefits back to the community, but the logic of commons allows for the prohibition of any form of enclosure via “share alike” licenses.

However, there are many points of contact between open data and the logic of commons, the former taking up the logic of the latter and exacerbating it. Thus the new ISP Directive (2019/1024/EU) is moving closer to the goal of commonality through the adoption of several key measures. These include the use of standard licenses at EU level, the opening up of data from public research and the encouragement of real-time data sharing.

There is still room for improvement in many aspects of the public open data regime as it exists today. Procedures for accessing administrative documents would benefit from being more responsive, and single data portals would promote the visibility and management of data sets. Finally, the issue of quality control of data-sets is presented here as a major challenge for the success of the open data movement. At this time, there is some legal uncertainty surrounding the framework for data dissemination, which is why it would be necessary to provide, within public organizations, an entity responsible for checking the authenticity of data-sets.

To conclude, the logic of commons and that of open data are based on the same virtuous logic of reuse: the more data is shared, the more relevant the use of this data is and will contribute to the creation of common wealth, beneficial to the market economy and the knowledge economy.

3/ Open source software and knowledge development: the example of the Open Food Network

Open Food Network is an organization born in Australia, and which currently offers a digital platform for short circuit operators in many countries, including France. This platform is a market place as much as a commercial management tool for all these operators. It has the particularity of being built and maintained thanks to all of the project’s stakeholders.

With the growth of the project, the main challenge was to provide and maintain a quality platform, while respecting the aspirations of the members involved in the Open Food Network project. In order to do so, the association had to carry out important work to define the legal and organizational framework for short circuit distribution. For example, this work has made it possible to determine the transaction models authorized in France. The association also works on the subject of interoperability between platforms and tools working for short circuits.

As regards the mode of governance, the association has first begun to think about changing its legal structure, by creating a SCIC (SCIC Coopcircuits, whose statutes are currently being filed) coupled with an association with distinct and complementary functions. In addition, the association has integrated self-managed and decentralized governance rules around three key points: a code of conduct based on trust between the players; the pooling of revenues from the activity and intended for software developments; and a decision-making process in line with all the structures involved in France and internationally in Open Food Network.