Fab Mob Reciprocal License for the Legal Contractualisation of Commons
* Source: The legal contractualisation of commons: Towards a model of reciprocal licence for "La Fabrique des Mobilités" .
Intro and part I translated by Pascale Garbaye, January 2018
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The subject of this study is to consider the possible terms of a contractual frame for the commons provided, created and developed within "La Fabrique des Mobilités" framework, in collaboration with all the players involved.
This study follows an initial reflection conducted in the "Livre Blanc", published in June 2015, under section "Establishing a common law for "La Fabrique des Mobilités".
Among the recommendations in this first article, we particularly considered that the "Fabrique des Mobilités" could be a regulatory body, by offering legal tools to its members that would enable them to govern the terms and conditions for their participation in the creation, use or even exploitation of commons.
Thus, a contractual scheme was proposed, depending on the level of commitment intended by the protagonists and the interactions that might exist between them. This scheme foresaw a "funnel-shaped" contractualisation: from a simple approval to a Charter of Values towards "open" licences contractualisation, to the possible development of suitable bipartite or multiparty partnerships, favouring reciprocity.
Since then, our aim has been to compare this contractual scheme with the needs expressed by the members of "La Fabrique des Mobilités" on current practical projects, to validate the analysis in relation to emerging contractual practices, particularly in the field of reciprocal licensing and finally, to propose possible and original contractualisation models.
This note is the restitution of this work.
It leads to the proposal of two documents:
(i) A "Charter of Values", designed for all members of "La Fabrique des Mobilités".
This Charter displays the conditions under which the resources are drived and managed within La Fabrique, for exclusively non-commercial purposes and on condition of sharing all copies and versions derived from these resources with other members.
(ii) An operating licence of the resources,
including commercial, available for members who contributed to their creation, enrichment, improvement or development, subject to an equitable remuneration to other contributors.
The existence of commons in our positive law is enshrined in article 714 of the Civil Code, which wording remained unchanged since the law of April 1803 the 19th. Since the general definition given by this article, the acceptation of commons was enriched, both by the law, which regulated certain categories of commons, and by schools, groups and/or communities which tried to implement licences to administer their use or even commercial exploitation, under conditions of reciprocity.
Thus, there is a kind of "taxonomy" of the commons, which can be identified according to their nature and mode of governance.
As for their governance, the only issue we consider in this study, two main contractualisation models coexist
(i) Public access to commons under open licences, generally the widest possible,
(ii) Conditional sharing of commons within a community of interest, in the context of reciprocal licences.
In our opinion, as soon as the "Fabrique des Mobilités" purpose is to create a platform for sharing information and resources between the different mobility actors, with the institution of respective rights and duties between the parties, the reciprocal licencing model, rather than open licences, should be choose.
Then, the question is "how" we can propose possible contractual terms.
After reminding the current acceptations of commons (I), this study looks into ongoing licences proposed or implemented to regulate the use of commons in view of the double objective to safeguard openness and reciprocity (II) and makes recommendations on potential contractual tools for "La Fabrique des Mobilités" so that emerging commons can be exchanged between members, on a non-commercial or commercial basis (III).
I. DIFFERENT ACCEPTATIONS OF COMMONS
In addition to the "classic" conception which, in general, applies to all commons (A), there is a specific category of commons to the transport and mobility field, recently recognised by the legislator: data of general interest (B).
A. Commons, in general
Today, the concept of commons can take many legal meanings, provided both by the law and by the choices of communities. It can be something that belongs to no one and its use is common to all (1), a good whose use is allowed to the many (2) or any results coming from an altruistic action conducted by a community of persons (3).
1. Thing that belongs to no one and its use is common to all
The first definition of common goods is given in article 714 of the Civil Code
"There are things that belong to no one and whose use is common to all"
Res communes usually referred to in Article 714 are natural things, such as air, seawater or running water, and some physical resources, such as pastures or fisheries.
This classic definition can also cover resources established more recently by contemporary legislators. Thus, public data perfectly match with the legal regime of common things, in that they do not belong to the public person, who physically holds them but must be open to the many, according to a legal redistribution mechanism.
Established since the CADA law of 17 July 1978, the policy of open access to public data is enjoying a new boom.
The law n° 2016-1321 of October 2016 the 7th, referred as "Law for a digital Republic", obliges all administrations (ministries, local and regional authorities, public institutions, etc.) to make any administrative document published in electronic format generally and systematically available to the public, "in an open standard, easily reusable and exploitable by an automated processing system".
2. A good whose use is allowed to the many
In addition to the definition of the Civil Code, another acceptation of commons appeared, based on the idea that commons are not necessarily defined by their essence but also by their function: all things which are freely accessible and usable would be common.
This applies when a property owner transfers its ownership to others, either fully or in part, temporarily or permanently, according to a predetermined and non-discriminatory manner.
Thus, according to this line of thinking which underpins the "open-source" concept, ownership itself becomes an alternative source of commons. Software, data or other content distributed "under free licenses" is the result of the willingness of its authors to share its use but remain their property
An "open-source" license is always open under certain predetermine conditions and reservations. Thus, the violation of the free licence terms is an infringement on the authors' intellectual property rights by counterfeiting them.
Therefore, contrary to popular belief, open licences are not the negation of ownership but an altruistic and disinterested development of it.
3. Any results coming from an altruistic action conducted by a community of persons
With the growing and structuring commons movement, the concept of "collaborative commons" appeared, according to which commons become not only natural things but also "human things".
In a society where donation and participation, sharing and feedback of experience, as well as collaboration, are favoured, human activities are now released from the grip of individual appropriation to become things that can be exchanged and even valued within communities of persons or interests.
Besides these three traditional conceptions, a new acceptation appeared in the field of transport: data of general interest, which definition appears to be a new typology of commons.
B. Data of general interest in the field of transport
Submitted to the Secretary of State for Transport, Sea and Fisheries in March 2015, the report called for the creation of a new category of data, data of general interest.
This report has been implemented in the law n° 2015-990 of August 2015 the 6th, referred as the Macron law. This law introduced a new article L1115-1 in the Transport Code, which provides that data, on regular public transport services for passengers and mobility, must be available for users information freely, immediately and free of charge.
Subject to the decree implementing this provision of the Macron law, which is still being reviewed by the Council of State, public transport services, as well as private companies, mobility services and AOT route planners should be subject to this obligation of free and open dissemination and access to the above-mentioned data.
Therefore, this law, implementing the recommendations of Jutland report, creates the new category of data of general interest, understood as private data in nature but their publication can be justified due to their interest to improve public policies.
These data of general interest come from three sources
- Data from public service delegations;
- Key data coming from grant agreements;
- Data from private companies necessary to INSEE surveys.
Since their objective is to be distributed and shared as widely as possible, data of general interest are undoubtedly equivalent to new commons.
Thus, commons would not be only determined by common use or a property rights but also by a purpose, the one whose pursues an objective of general interest.
These commons existing in various ways, can their administration, i.e. how they are used in common, be subject to contractual modelling? According to their nature? The communities who use and exploit them? And possible operational modes, allowed, conditioned or prohibited?
There are currently different licenses that govern the use of commons. Some of them are still looking for. Others have to be invented...