Graduation

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Title: Graduation
DRACC: 0007
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.

Introduction

When a Programme and its community operate successfully and grow in scale, complexity and ambitions, they can reach a point at which it makes sense to establish a dedicated legal entity as a new host organisation, instead of continuing as a Programme within [The Commons Conservancy] (see "Mapping Rights to Programmes" DRACC).

At that point an organisation independent from [The Commons Conservancy] SHOULD be able to take over the legal custodianship of intangible assets held on behalf of a Programme, such as intellectual property rights on computer source code, URI schemes, cryptographic identifiers, database rights and domain names.

[The Commons Conservancy] holds a long term perspective on the availability of the technologies and content created within its Programmes. Unless other arrangements have been made by a Programme in its statutes or regulations, [The Commons Conservancy] will act as a safety net when the new host organisation assuming custodianship ceases to exist before the legal expiry of its intangible assets.

This document describes the process which MUST be followed in such a scenario, and which we refer to as Graduation.

[The Commons Conservancy] is dedicated to serving the public interest, and changing the organisational home of a large and successful project is not a trivial operation in many ways. A Programme MAY also have explicitly set conditions pertaining a possible Graduation scenario. [The Commons Conservancy] SHALL make sure that a transfer of custodianship is handled in the best possible way, given such conditions, its values and mission as well as legal and fiscal conditions, revelant to the Programme or [The Commons Conservancy], that may apply in specific circumstances.

[The Commons Conservancy] and the ecosystem around it depend on trust that is given by developers and rights holders as a precondition to transfer intangible assets to [The Commons Conservancy]. This trust is based on transparency and reliability, which extends to the conditions and the way in which intangible assets are handed over to the new host organisation -- and in some case even back to [The Commons Conservancy]. [The Commons Conservancy] offers Programmes the possibility to leave a Hibernated (see DRACC "Hibernation") instance of itself holding some or all of its intangible assets with [The Commons Conservancy] as a backup, which can be revived subject to conditions set by the Programme (including non-compete clauses). Note that this is optional but recommended for practical purposes.

If a Programme wants to Graduate, its Governing Body MUST send a written request to the Board of [The Commons Conservancy] with a detailed description of the new organisational setup it envisions (including the names and roles of its key officials) and all the intangible assets it requests to use. Only legal entities with a not-for-profit character are eligible to serve as a candidate host. If a Programme has made provisions in its statutes or regulations regarding certain intangible assets in case of Graduation of the Programme, those provisions MUST be indicated in the request. For a valid Graduation of a Programme the following procedure MUST be taken:

  1. The Governing Body of the Programme SHALL initate a Public Consultation (see DRACC "Public Consultation"), to which only developers of the Programme and the Programmes it Shares asset with, whether through Asset Sharing or Shared Asset Forks (see DRACC "Asset Sharing" and DRACC "Programme Forking", respectively), are invited.
  2. As soon as the Board of [The Commons Conservancy] receives the request for Public Consultation, and in parallel to the Public Consultation process, a copy of any and all online or other archievable intangible assets from the original Programme SHALL be archived by [The Commons Conservancy] with the help of the Graduating Programme to serve as backup. Where possible, software necessary to maintain said assets SHOULD be included.
  3. Before making its decision based on the Public Consultation, the Board of [The Commons Conservancy] SHALL identify any intangible assets involved that are shared among different Programmes, wether through Asset Sharing or Shared Asset Forks. As a guiding principle in the Board's decision such shared intangible assets SHOULD continue to be available to the other Programmes involved, and thus SHOULD only be licenced to the new host organisation rather than be transferred. Any deviation from this principle requires agreement of all Programmes involved as well as a specific decision of the Board of [The Commons Conservancy].
  4. If the outcome of the Public Consultation is favourable and once the new host organisation is ready to receive the intangible assets that have been approved for transfer and/or licensing, [The Commons Conservancy] will create an Asset Transfer Agreement to establish the conditions of the transfer. The transfer is conditional and includes terms that are aimed to protect the openness of the Programme even in the environment of its new host organisation. The transfer of intangible assets will be effectuated when the Asset Transfer Agreement is signed by [The Commons Conservancy] and the new host organisation.

The Graduated Programme MAY choose to leave a Hibernated instance of itself at [The Commons Conservancy]. In that case it SHALL be placed in Hibernation (see DRACC "Hibernation of assets") and SHALL be clearly marked as such. [The Commons Conservancy] MAY continue to accept incoming contributions in the Hibernated Programme instance. In addition, the Graduating Programme has the OPTION to allow Shared Asset Forking or Asset Sharing (see DRACC "Asset Sharing" and DRACC "Programme Forking") with other Programmes for its Hibernated instance. Should the new host organisation not work out as planned, or be terminated, its intangible assets can be easily reactivated within [The Commons Conservancy].

If the Graduated Programme does not decide to leave a Hibernated instance, it will be marked as "Frozen", which means that the Programme essentially becomes "read-only" and developers SHALL be directed toward its new organisational home.

In case of a violation or rescindment of the Asset Transfer Agreement or in the case where the new host organisation ceases to exist before the legal expiry of the intangible assets, all intangible assets SHALL be returned to [The Commons Conservancy]. In such case these assets SHALL be placed in Hibernated Programme. In the absence of a Programme's Governing Body, it SHALL be the responsibility of the Board of [The Commons Conservancy] to make decisions on how to proceed when there is renewed interest to continue work on the Programme.