This note aims to feed the legal doctrine applicable to common projects designed or supported within the administration in order to harmonize and systematize these practices. On the basis of this very precise subject, it addresses various notions concerning, on the one hand, the intellectual property issues of civil servants and contractual employees and, on the other hand, the Open Source and Open Data regime induced by the Law for a Digital Republic (2016). It will be updated regularly to integrate the questions raised.
The main target of this document is any project leader within the administration who wishes to disseminate or initiate a common. The resources aim to guide them directly (understanding the issues and necessary actions) as well as to support their actions with their team or even their management.
In practice, the legal elements are gathered in 5 sheets corresponding to different legal situations, each of them referring to sub-sheets that are additional developments and answers to questions that may arise. These legal analysis sheets can be read in two ways: by project leaders and by legal experts (via numerous footnotes).
Sheet 1 : Identifying protected objects and understanding the rights attached to protected objects
The digital commons developed under the impulse of an administration can constitute intellectual works protected by copyright. This can be the case in particular in the presence of software, graphics or typography integrated within these software or visual or audiovisual elements integrated into software or databases. They can also constitute databases protected by copyright or the sui generis right of the database producer. Finally, they may involve other industrial property rights such as product or service trademarks.
In a digital commons approach, it is thus necessary to identify all these legal objects and the associated regime. Indeed, it is these resources produced, and the rights derived from them, that will be the object of collaboration and sharing between the members of the community.
In order to help you in this identification, several data sheets are proposed to you:
The initial owners of copyright in intellectual works may vary. They may be one or more natural persons. They may also be legal entities in the case of collective works, software works or works created by public officials in the course of their duties or according to instructions received.
Thus, the initial owner of sui generis copyright on the database protection may be the administration under whose impetus the database was developed; or another person depending on the case.
These copyrights and sui generis rights of the database producer are in theory obstacles to the free reuse of the digital commons by other contributors, which is why it is necessary to ensure that all rights holders do not impede the free reuse of the digital commons by other contributors.
Therefore, it is necessary to ensure that all rights holders do not impede the free reuse of the digital commons by other contributors. The acts that may be carried out by these contributors, such as reproduction, modification or reuse, should in principle be authorized by the holders of these rights.
Owners may decide not to exercise their rights, but the lack of formalization of this choice would be a source of legal insecurity for the project and its sustainability. Poor management of rights could lead to infringement actions and the paralysis of digital commons projects. It is therefore important to identify all these owners (limiting, when necessary, the injection of elements protected by rights that are not owned by the contributors and that they will therefore not be able to assign or license).
In order to help you in this identification, several technical sheets are proposed:
Sheet 3 : Knowing the obligations and rights arising from Open Data
Open Data aims to ensure the availability and free reuse by all of the data held by an organization.
When this data is in the hands of a public body, a specific regulation, which also pursues the objective of transparency of public action, provides a framework for this opening of data. This regulation is based on two distinct regimes.
- communication, access and dissemination of administrative documents (data sheets 3.1 and 3.1.1 specifically for source codes)
- the re-use of public information(data sheet 3.2).
The digital commons developed under the impetus of an administration can be considered as administrative documents when they are developed within the framework of public service missions by administrations and/or private law persons, and therefore subject in principle to the obligation of communication of administrative documents and to the right of access(data sheet 3.3). However, these administrative documents may be encumbered by literary and artistic property rights which may impede this principle of communication and free access(Technical Sheet 3.4).
The contents of digital commons constituting administrative documents can be considered as public information, subject to the principle of free re-use (data sheet 3.5). On the other hand, digital commons on which third parties hold intellectual property rights are not public information.
This reuse can be regulated by means of licenses proposed by decree or subject to specific approval (Sheet 5 - Choosing the right license).
The submission of the digital commons to the principles of Open Data will therefore depend essentially on two elements:
their development within the framework of public service missions or not;
the existence of intellectual property rights held by third parties or not.
Références :
Sheet 4 : Managing rights grants
In a digital commons approach, it is necessary to ensure that all rights holders do not impede the free reuse of the digital commons by other contributors.
The acts likely to be carried out by these contributors, such as reproduction, modification or reuse, should in principle be authorized by the holders of these rights.
Owners may decide not to exercise their rights, but the lack of formalization of this choice would be a source of legal insecurity for the project and its sustainability. Poor rights management could lead to infringement actions and the paralysis of digital commons projects.
It is therefore important to formally secure the necessary authorizations to continue the development of the digital commons.
If no particular formalism is imposed by the intellectual property code in terms of database producer's rights and trademark rights, specific rules exist in terms of copyright.
As a matter of principle, the Law for a Digital Republic (LPRN) does not require administrations to release datasets under a license except in case of royalties. Nevertheless, even when the data is opened for free, the choice of a license is strongly advised in order to facilitate the reuse of these data. Thus, it allows to :
formalize the framework for reuse defined by the law, thereby strengthening legal security and the trust established between the administration and reusers;
in the presence of intellectual property rights (including copyright), togrant a license to the intellectual property rights held for the benefit of the reusers and in compliance with the law.
It is therefore important to identify the applicable licenses according to each application context. To help you in this identification, you can refer to thededicated data sheet.
Références :
This doctrine is a publication produced collectively by Vercken & Gaullier and inno³ on behalf of the Digital Society Lab (labo.societenumerique.gouv.fr). Intended to promote the emergence of a common legal doctrine on commons produced or supported by the administration, it is aimed at both the actors who are carriers of commons as well as the people in charge of supporting these approaches. It is intended to be updated according to legislative and jurisprudential developments and to be completed according to contributions and remarks. It does not constitute legal advice and does not in any way replace the opinions that must be sought from the competent persons within each department. Finally, do not hesitate to consult the website http://labo.societenumerique.gouv.fr in order to read the latest versions of these documents, to consult any other resource for public actors wishing to mobilize the potential of the digital commons in their strategy or to contribute to this dynamic.
Digital commons developed under the impetus of or with the participation of a public person [legal doctrine].
This note aims to feed the legal doctrine applicable to common projects designed or supported within the administration in order to harmonize and systematize these practices. On the basis of this very precise subject, it addresses various notions concerning, on the one hand, the intellectual property issues of civil servants and contractual employees and, on the other hand, the Open Source and Open Data regime induced by the Law for a Digital Republic (2016). It will be updated regularly to integrate the questions raised.
The main target of this document is any project leader within the administration who wishes to disseminate or initiate a common. The resources aim to guide them directly (understanding the issues and necessary actions) as well as to support their actions with their team or even their management.
In practice, the legal elements are gathered in 5 sheets corresponding to different legal situations, each of them referring to sub-sheets that are additional developments and answers to questions that may arise. These legal analysis sheets can be read in two ways: by project leaders and by legal experts (via numerous footnotes).
Sheet 1 : Identifying protected objects and understanding the rights attached to protected objects
The digital commons developed under the impulse of an administration can constitute intellectual works protected by copyright. This can be the case in particular in the presence of software, graphics or typography integrated within these software or visual or audiovisual elements integrated into software or databases. They can also constitute databases protected by copyright or the sui generis right of the database producer. Finally, they may involve other industrial property rights such as product or service trademarks.
In a digital commons approach, it is thus necessary to identify all these legal objects and the associated regime. Indeed, it is these resources produced, and the rights derived from them, that will be the object of collaboration and sharing between the members of the community.
In order to help you in this identification, several data sheets are proposed to you:
The initial owners of copyright in intellectual works may vary. They may be one or more natural persons. They may also be legal entities in the case of collective works, software works or works created by public officials in the course of their duties or according to instructions received.
Thus, the initial owner of sui generis copyright on the database protection may be the administration under whose impetus the database was developed; or another person depending on the case.
These copyrights and sui generis rights of the database producer are in theory obstacles to the free reuse of the digital commons by other contributors, which is why it is necessary to ensure that all rights holders do not impede the free reuse of the digital commons by other contributors.
Therefore, it is necessary to ensure that all rights holders do not impede the free reuse of the digital commons by other contributors. The acts that may be carried out by these contributors, such as reproduction, modification or reuse, should in principle be authorized by the holders of these rights.
Owners may decide not to exercise their rights, but the lack of formalization of this choice would be a source of legal insecurity for the project and its sustainability. Poor management of rights could lead to infringement actions and the paralysis of digital commons projects. It is therefore important to identify all these owners (limiting, when necessary, the injection of elements protected by rights that are not owned by the contributors and that they will therefore not be able to assign or license).
In order to help you in this identification, several technical sheets are proposed:
Sheet 3 : Knowing the obligations and rights arising from Open Data
Open Data aims to ensure the availability and free reuse by all of the data held by an organization.
When this data is in the hands of a public body, a specific regulation, which also pursues the objective of transparency of public action, provides a framework for this opening of data. This regulation is based on two distinct regimes.
- communication, access and dissemination of administrative documents (data sheets 3.1 and 3.1.1 specifically for source codes)
- the re-use of public information(data sheet 3.2).
The digital commons developed under the impetus of an administration can be considered as administrative documents when they are developed within the framework of public service missions by administrations and/or private law persons, and therefore subject in principle to the obligation of communication of administrative documents and to the right of access(data sheet 3.3). However, these administrative documents may be encumbered by literary and artistic property rights which may impede this principle of communication and free access(Technical Sheet 3.4).
The contents of digital commons constituting administrative documents can be considered as public information, subject to the principle of free re-use (data sheet 3.5). On the other hand, digital commons on which third parties hold intellectual property rights are not public information.
This reuse can be regulated by means of licenses proposed by decree or subject to specific approval (Sheet 5 - Choosing the right license).
The submission of the digital commons to the principles of Open Data will therefore depend essentially on two elements:
their development within the framework of public service missions or not;
the existence of intellectual property rights held by third parties or not.
Références :
Sheet 4 : Managing rights grants
In a digital commons approach, it is necessary to ensure that all rights holders do not impede the free reuse of the digital commons by other contributors.
The acts likely to be carried out by these contributors, such as reproduction, modification or reuse, should in principle be authorized by the holders of these rights.
Owners may decide not to exercise their rights, but the lack of formalization of this choice would be a source of legal insecurity for the project and its sustainability. Poor rights management could lead to infringement actions and the paralysis of digital commons projects.
It is therefore important to formally secure the necessary authorizations to continue the development of the digital commons.
If no particular formalism is imposed by the intellectual property code in terms of database producer's rights and trademark rights, specific rules exist in terms of copyright.
As a matter of principle, the Law for a Digital Republic (LPRN) does not require administrations to release datasets under a license except in case of royalties. Nevertheless, even when the data is opened for free, the choice of a license is strongly advised in order to facilitate the reuse of these data. Thus, it allows to :
formalize the framework for reuse defined by the law, thereby strengthening legal security and the trust established between the administration and reusers;
in the presence of intellectual property rights (including copyright), togrant a license to the intellectual property rights held for the benefit of the reusers and in compliance with the law.
It is therefore important to identify the applicable licenses according to each application context. To help you in this identification, you can refer to thededicated data sheet.
Références :
This doctrine is a publication produced collectively by Vercken & Gaullier and inno³ on behalf of the Digital Society Lab (labo.societenumerique.gouv.fr). Intended to promote the emergence of a common legal doctrine on commons produced or supported by the administration, it is aimed at both the actors who are carriers of commons as well as the people in charge of supporting these approaches. It is intended to be updated according to legislative and jurisprudential developments and to be completed according to contributions and remarks. It does not constitute legal advice and does not in any way replace the opinions that must be sought from the competent persons within each department. Finally, do not hesitate to consult the website http://labo.societenumerique.gouv.fr in order to read the latest versions of these documents, to consult any other resource for public actors wishing to mobilize the potential of the digital commons in their strategy or to contribute to this dynamic.