Asset Sharing

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Title: Asset Sharing
DRACC: 0006
Category: Regulatory
Scope: Global
Authors: Leenaars, M.A.G.J.; Šuklje, M.
Date: January 2017
Copyright: The Commons Conservancy

This document is part of the DRACC series, see DRACC "Introduction to DRACC Series" for an explanation. You can reuse it under a "Creative Commons Attribution 4.0 International" license.

[The Commons Conservancy] aims to have provisions in all its common procedures to allow for shared ethical stewardship of intangible assets -- such as copyright, trade marks, patents, databases, integrated circuit layout design and the like -- across Programmes as well as with outside parties. A simple case where a well-defined notion of shared ethical stewardship is essential, is when a set of Programmes jointly inherit intangible assets, agreements and commitments from a mutual ancestor in a Shared Asset Forking procedure (see DRACC "Programme Forking"). Programmes with a partially shared codebase MAY want to continue to share all their contributions to provide cross-fertilisation and reuse across efforts.

There are other scenarios in which shared ethical stewardship of assets is not the starting point, but can be beneficial nonetheless. Each Programme within [The Commons Conservancy] is independently governed and serves its own purposes, yet as the scope and activities of individual Programmes develop over time it may well be the case that there are significant overlapping interests, activities and even community members among certain Programmes. The same could happen between Programmes and other projects outside of [The Commons Conservancy] (i.e. external organisation).

Given enough overlap and mutual compatibility, some form of collaboration or even a (partial) consolidation of efforts might be a natural course of action. However, before such a scenario can happen there can be practical obstructions that need to be cleared away. One awkward obstruction could be incompatibility of the software licenses used by the different parties. Such a legal incompatibility can be very difficult to resolve, in particular when rights have not been properly assigned.

When all relevant rights and assets are in fact held by the parties involved, practical solutions may actually be possible. This document is not meant to exhaustively prescribe or even attempt to describe the infinity of possible arrangements that could exist among Programmes, and between Programmes and external projects. It does describe how Programmes and third parties MAY voluntarily Share intangible assets, and tries to clarify the possible role and responsibilities of the Board of [The Commons Conservancy] and the Programmes in such a case.

It is important to stress that a contributor always retains the right to withdraw future contributions from being Shared, just as any recipient of assets has the right to not use or even accept contributions that fall outside of the scope set by the Programme. Similarly, an individual contributor of assets has every right to assign to multiple Programmes the right to benefit from their contributions -- even without any formal agreement between these Programmes (see DRACC "Assigning Rights"). Of course lack of adequate tooling can make this difficult, and ad hoc assignments without any coordination can lead to confusion and very rarely scale well.

Asset Sharing is defined as broadening the ethical stewardship of specific intangible assets associated with (a set of) Programme(s) -- such as copyright, trade marks, patents, databases, integrated circuit layout design and the like -- to include additional ethical co-stewards. The Programme(s) who is/are the ethical (co-)stewards of assets in question, choose which -- if any -- stewardship restrictions are placed on the newly appointed ethical co-stewards. The newly appointed ethical co-stewards could be other Programmes within [The Commons Conservancy] and their descendants, and in exceptional cases even external not-for-profit entities.

Asset Sharing MAY be reciprocal -- Programmes MAY Share assets with each other, should they decide to --, but this is not a requirement; a Programme MAY also simply choose to Share assets with another Programme, while that second Programme itself might not have anything to offer (or want to offer) in return.

Such an arrangement makes use of the fact that it is the priviledge of the existing ethical stewards of assets to make changes to both the ethical stewardship and to the conditions under which those assets can be used. Programmes MAY only opt to make use of this prerogative when their own statutes and regulations allow for such a course of action. Any arrangement SHALL only be considered valid if it respects the restrictions and conditions formulated within the statutes and regulations of the Programmes involved, and, if applicable, the equivalent internal rules of external organisations.

Asset Sharing can have a significant impact, and therefore MUST happen through a formally approved, archivable agreement between all of the Programmes which already hold and/or are to hold (co-)stewardship the assets, as well as the Board of [The Commons Conservancy].

The Sharing Agreement MUST describe at least:

  1. the assets -- such as copyright, trade marks, patents, databases, integrated circuit layout design and the like -- that are to be Shared (which MAY include provisions for ongoing and potential future contributions, as specified below);

  2. all Copyright Assignment Agreements, Contributor License Agreements, Certificates of Origin and other proofs of the rights to the assets involved, including an overview of any existing Sharing Agreements relevant to this Sharing Agreement.

    In case still ongoing and future contributions are to be added continuously to the assets being Shared or in case of reciprocal Sharing, it is therefore recommended to also address the following aspects in the Sharing Agreement:

  3. any conditions, parameters and exceptions (such as limitations on future

    proliferation within [The Commons Conservancy], binding decision procedures among the ethical co-stewards) to which the use of the assets are to be bound;

  4. the composition of ethical co-stewardship in the old and in the new situation (including distribution of voting rights in future shared decisions, where relevant);

  5. the mechanism(s) with which the new ethical co-stewards SHALL be notified of new Shared contributions within the originating Programme(s);

  6. the channel(s) through which announcements SHALL be made about revocation statements of individual contributors, other Programmes and third parties;

  7. a possible clearing procedure to use so that the new ethical co-stewards can establish whether or not specific contributions are indeed Shared;

  8. a termination procedure to be able to stop Sharing of future contribution. Programmes that terminate a Sharing Agreement SHOULD allow for a fair period of advance notice.

There lies a serious responsibility with the Programmes involved, to Share in a way that respects the intentions of those who originally contributed the assets. Once Shared, the situation cannot be rescinded without agreement and cooperation of all authors/rights holders, and even then it might not be possible to recreate the exact same legal status quo as before.

A Sharing Agreement with external organisation(s) SHALL always be subject to a Public Consultation (see DRACC "Public Consultation"). In other cases the Sharing Agreement between Programmes MAY be subject to a Public Consultation, depending on the statutes and regulations of the Programmes involved. If a Public Consultation takes place, the Board of [The Commons Conservancy] has to take its outcomes into consideration when deciding whether to approve the Sharing Agreement or not.

Differences of opinion about the need and conditions of collaboration can occur, especially in cases where there is a historical competition among the efforts or some individuals involved. Some contributors MAY choose not to follow the Programme they contribute to anymore, when it seeks collaboration with other Programmes; to limit their contribution to just that one Programme; or they MAY even have a change of heart later on. It is up to the individual contributor to draw their own conclusions, and make use of their right to revisit the agreement they entered into with the Programme(s). That way they MAY deny the Sharing of their future contributions beyond the Programme(s) they had chosen to contribute to initially -- regardless of the Programme's stated intention to collaborate and Share with others.

If there is no dedicated liaison channel assigned within a Programme or external organisation that engages in Sharing (on both ends), its Governing Body is assumed to act as such.

A Programme entering into a Sharing Agreement, MUST explicitly inform all parties of any relevant restrictions in their statutes and regulations prior to anyone signing the Sharing Agreement. In case a violation of such restrictions comes to light, the legal and moral basis for Sharing might not be adequately justifiable and the Board of [The Commons Conservancy] MAY rescind the Sharing Agreement of a Programme immediately upon notification. Programmes are the therefore encouraged to review the statutes and regulations of the Programmes they enter into a Sharing Agreement with.

Sharing of future contributions can be done in each of four ways: Opt-in, Opt-out, Soft Merge and Hard Merge.

  • "Opt-in" means (in this context) that a new contributor assigning assets to one of the Programmes is suggested to include other Programmes in that assignment (see DRACC "Assigning Rights"). Unless the contributor explicitly states that they wish to contribute their assets to other Programmes (and which), their contribution SHALL not be Shared with other Programmes.
  • "Opt-out" means (in this context) that contributors are informed that their newly contributed assets will fall under one or more Sharing Agreements, unless they explicitly indicate otherwise within a certain period.
  • "Soft Merge" is the scenario where the collection of intangible assets of Programmes and potentially other parties are henceforth considered as one, but the Programmes remain technically independent and retain their own different vision, focus and strategy.
  • "Hard Merge" is the scenario where multiple Programmes are consolidated into a single Programme or into a new or existing new host organsation (see DRACC "Graduation").

In case another DRACC or document refers to this DRACC for the definition of "Merge", either the definition of "Soft Merge" and "Hard Merge" applies.

In case one of the involved Programmes Graduates or has Graduated (see DRACC "Graduation") such a Sharing Agreement MAY be extended to the resulting new host organisation. In such case each Programme SHALL inform its current and future contributors accordingly.

In case a Programme is no longer interested in a certain part of its assets, it MAY transfer these assets to another (set of) Programme(s) to adopt them provided such is in line with its own statutes and regulations, as well as the overall statutes and regulations of [The Commons Conservancy] (see DRACC "Asset Transferring").