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The Digital Commons: an innovative model for the development of digital resources

This article is the result of the collaborative process of designing the " Digital Commons Tutorial ".This Digital Commons Tutorial is the result of two days of workshops coordinated by Inno³ during the first edition of Numérique en commun(s ), which brought together some twenty commons actors from different backgrounds, both private and public, all of whom were eager to share their difficulties in setting up a digital commons project, and to collectively come up with possible solutions.It was then augmented by contributions collected online or produced during post-NEC workshops. A version is presented here but it is a collaborative process in progress, do not hesitate to react and increase by sharing in comments or by contributing from your personal space your feedback, your tools, your thoughts. IntroductionDigital technology facilitates collaboration by inviting organizations from all sectors to come together under this common language. Thus, the digital transformation of organizations leads them to enter into a process of openness and collaboration, facilitated by the development of collaborative work tools. All organizations are naturally led to open up to the outside world in order to develop external projects internally and, conversely, to promote projects initiated internally. For all these reasons, players in a wide range of sectors are now taking a close interest in open models. Aware that they can no longer maintain their competitiveness by innovating alone, they want to approach the market from a new angle.Digital technology is the source of a new impetus for the commons movement, so it is not a surprise that more and more public and private actors are joining forces to make such commons emerge as viable alternatives to the logic of the dominant digital actors. However, this phenomenon relies on important cultural changes, so that all actors can fully benefit from and contribute to these common resources. 1. When do we talk about the digital commons?Definition: a commons is a resource that is produced and/or maintained collectively by a community of heterogeneous actors, and governed by rules that ensure its collective and shared character.It is said to be digital when the resource is dematerialized: software, database, digital content (text, image, video and/or sound), etc.The digital commons have new characteristics:  the use of the resource by some does not limit the possibilities of use by others (the resource is non-rival)  its preservation does not involve reserving the right to use it to a restricted community (the resource is non-exclusive). Thus, the digital commons benefit from being shared, because this sharing directly increases the use value of the resource and also makes it possible to extend the community that will preserve it. The digital commons is thus at the origin of the development of a new kind of commons by differentiating it from the natural or material commons, which are open and shared, thus increasing their potential.Probably the most obvious examples of digital commons, because they are used in everyday life, are the Linux operating system, the Firefox web browser and the online encyclopedia Wikipedia.More and more collaborative databases are also emerging as digital commons, such as OpenStreetMap for geographic data, Open Food Facts for food products or TelaBotanica, a true collaborative botanical encyclopedia.The increasing digitization of different industrial sectors favors the logic of mutualization and collaboration, which is formalized by a multiplication of "sectoral" digital commons (energy, banking, mobility, health, etc.). 2. Engage in a commons approach2.1. Why choose the digital commons model for a resource?Sharing is generally the primary benefit of pooling a resource: sharing in terms of design time, maintenance, resources, etc. Moreover, producing a digital commons allows a resource to be set up as a reference in a domain. As the value is linked to the use that is made of it - the use by some reinforcing the value for others - its widespread adoption is a sufficient motivation in itself. At once a driver of innovation, free competition, and open cooperation, the digital commons are accompanied by facilitated collaboration in all fields of our society, creating bridges between the private and public sectors, the for-profit and non-profit fields. At the scale of an organization, the adoption of a digital commons approach is generally linked to an awareness of the need for digital transformation, allowing the organization to strengthen its strategic assets, gain in attractiveness and attract new talent. On the scale of the resource, it is also a guarantee of sustainability, emancipation and resilience with regard to contributors. More specifically, for a public actor, the use of the commons model has the advantage of offering greater wealth and a better distribution of the value produced by the community, but also of engaging the users of a service in a process of maintenance and development of the latter. It also allows to reinforce the accessibility to this service. In this sense, it may be interesting, from the point of view of an administration, to consider a priori any digital resource produced by it as a common good, unless this is contrary to its objectives or interests. This position is in line with the "Open Data by default" regime introduced by the Law for a Digital Republic, thus providing a framework and the necessary continuity to give meaning to these obligations. 2.2. What does the development of a digital commons commit to?The above benefits nevertheless remain the fruits of the efforts that necessarily accompany such an approach. More than simply producing or opening a resource, the development of a digital commons project requires strong vigilance with regard to the resource, but also for the benefit of the community and its rules of governance. The entire structuring of the commons must integrate support mechanisms, animation and practices that ensure the open and inclusive nature of the project. This requires dedicated efforts to support the arrival and retention of community members, as well as a certain number of good practices that are of interest beyond this community alone (code documentation, commenting tools, etc.). Similarly, it is necessary to define and enforce a framework that ensures the collaborative, open and inclusive nature of the commons, so that the community of contributors and users can flourish. Committing to the development of a commons thus requires a long-term commitment, which will only be resolved once a sufficient community has joined the project. If you want to go further and understand the issues and operational modalities to be designed to engage in a Digital Commons approach, consult the Digital Commons Tutorial and the associated tools from the collaborative approach conducted at Numérique(s) en Commun 2018.

• Commons

Published on 16/10/19



What legal structures to carry digital commons? #Introduction

The digital commons are modes of production and organization that are increasingly mobilized by public actors, as evidenced by the political news on the subject, the most recent example of which is the commitment made, as part of the French presidency of the European Union, to conduct a policy of support for the digital commons, under the aegis of the Ambassador for the Digital Economy Henri Verdier. This commitment is part of a long-term movement to support the digital commons. On November 10, 2021, during theOpen Source Experience, Amélie de Montchalin, Minister of Public Transformation and Civil Service, in charge of the State's digital transformation, presented the Government's strategy for accelerating the use of open source software and digital commons in the administration. Regarding the national policy in favor of digital inclusion led by the ANCT, this announcement is in line with the interventions during Numérique en commun[s ] 2021 of Jacqueline Gourault, Minister of Territorial Cohesion and Relations with Local Authorities, and of Cédric O, Secretary of State for Digital Transition.The digital commons designate digital resources produced and maintained by a heterogeneous community of actors according to rules that it enacts itself and that guarantee the open and democratic character of the commons. Three components must therefore be brought together: one or more digital resources (knowledge, data, software, design plans, etc.); a community of users and contributors; rules of governance and collaboration defined and implemented by the community to ensure its organization and that of the resources produced. The characterization of this triptych and its maintenance over time are the key to the success of a digital commons approach. The ANCT has been committed to mobilizing the commons for the benefit of general interest missions for many years, with actions such as "Numérique en Commun[s]". More recently, the France Relance consultation "Digital Transformation of Local Authorities" conducted by the Incubateur des territoires further demonstrates that, while the commons are not an end in itself, they nevertheless represent a new way of acting politically that is more resilient, responsible and sustainable. It also reflects a growing desire on the part of local authorities to implement participatory democracy within their territory. For example, the Communauté d'Agglomération de La Rochelle has chosen to develop a platform for monitoring the carbon footprint of its stakeholders as a digital commons; the IGN aims to become a major player in the digital commons of geodata with its Géocommuns portal; and the City of Paris has already been resolutely committed to the development and use of digital commons for several years. The growing involvement of public actors in digital commons projects has made community management and governance a major focus of attention in order to ensure the success of digital commons initiatives. The community, its dynamics and its size are important factors of attractiveness and sustainability of the commons. This works according to a virtuous circle logic: the more the resource is used, the more contributions it receives, the more functionalities it offers, the more attractive it becomes and the more its community grows, which leads to an increase in the number of contributions. In this context, it is necessary to pay particular attention to the management and governance of the community, and in particular to its possible legal structure.The spirit of the Digital Society Lab has always been to propose resources that are inspiring, but also useful and directly activable by the bearers (Digital Commons Tutorial; list of recommendations specifically intended for public actors (checklist) or clausier for digital commons). In this logic, the Digital Society Program, in collaboration with inno³, proposes to explore in depth, in two series of articles, the question of the legal structuring of the digital commons, with a particular focus on Public Interest Groups and Collective Interest Cooperative Societies. Legal structuring of the digital commons: what are the issues?The constitution of a legal structure around a digital common has several interests: To consolidate the rules of governance of the community with regard to the members. Each member will thus have perfect visibility on his or her rights and obligations, as well as on the roles and competencies of each. A legal structure thus becomes particularly relevant when the size of the community no longer allows for direct, horizontal governance; Allow third parties to join or contribute to the commons. The transparency of the community's functioning, through the adoption of a proven legal form and the publication of statutes, facilitates membership in the digital commons and encourages economic collaboration. It is therefore a factor of legal security conducive to the development of the digital commons; Empower the commons by integrating it into a framework adapted to its needs in terms of financing and resources (in particular for the development of its own economic activity and/or the solicitation of public subsidies). This is therefore a factor in the economic sustainability of the digital commons. Participation of the public actor in the digital commons: the different existing structuresIn the particular case of a community initiated or joined by one or more public actors, legal structuring becomes even more crucial.First, the adoption of a corporate form and the drafting of appropriate statutes will make it possible to secure the role of all the actors within the community. This is an essential step, because the public actor needs this security in order to commit and, conversely, the other actors may wish to limit the dominant role that the public actor could take in the governance of the project (fearing that the voluntarism of the public actor, coupled with its human and financial resources, will lead to de facto leadership in the governance of the digital commons).In a very operational way, the legal structuring, when it leads to the creation of a legal entity, will make it possible to distinguish the common from the public actor, and thus to secure grant applications and the awarding of public contracts by the digital common.While there is no perfect legal structure to help structure a digital commons, an observation of practices allows us to identify different social forms favored by the actors of the commons.These structures can be separated into two categories: those that can carry out - in a limited way - an economic activity for its members (profit or not); and the others. Organizations with limited economic activity The first structure to be considered is not really a structure: it is the consortium. The consortium consists of a collaboration between several actors, contracted or not, for the execution of one or several operations. Its life span is that of the activity for which its founders have foreseen it. The advantage of a consortium is that it is easy to set up and allows total freedom in the regulation of relations between members. The major disadvantage is that it constitutes a grouping without legal personality, and therefore with little security for third parties, which limits its possibilities of economic development.Theassociation of law 1901 will allow the creation of this legal personality dedicated to the common, while preserving a great freedom in the internal organization. An association is defined as "the agreement by which two or more persons permanently pool their knowledge or activity for a purpose other than to share profits. Its regime is very flexible, since the law only requires the declaration of a purpose, a registered office and at least two directors to recognize the legal personality of the association. Moreover, the association's functioning makes the general assembly of members the central organ of the structure, which makes it a suitable vehicle for the self-governance of the common. The association is thus the preferred mode of primo-structuring for holders of the commons, but its relevance as a structuring framework over time can evolve according to the economic model chosen for the development of the commons. Indeed, the economic and commercial activity of an association is strictly regulated and limited.Also non-profit, the foundation is however a distinct structure from the association, and may be considered depending on the objective pursued by the common. The foundation is defined by the irrevocable allocation of assets for the realization of a work of general interest; as well as by a governance based essentially on its board of directors. As for the association, its economic development prospects are limited due to the legal framework provided.In the particular case of a digital community driven or joined by a public actor, the Public Interest Group (GIP) is finally a complementary alternative. The GIP is a legal entity under public law, with administrative and financial autonomy. It is established by agreement, approved by the State, either between several legal entities under public law, or between one or more legal entities under public law and one or more legal entities under private law, in order to carry out together activities of general interest on a non-profit basis. This structure will be the subject of a series of posts that will go into detail about its specificities and its suitability for the legal structuring of digital commons.Although the structures we have just mentioned have the advantage of being relatively easy to create and manage, their legal framework limits the development of an economic activity of their own and may lead to the use of other structuring models that are less constrained on this point. Organizations allowing the development of an economic activity Economic structures by nature, commercial companies can be a useful centralized model to initiate or develop a commercial activity around a resource. In French law, the main forms of commercial companies are the Société Anonyme (SA), the Société À Responsabilité Limitée (SARL), and the Société par Actions Simplifiée (SAS), which has a single-person version (SASU). Each one has its own specificities, but all of them are oriented towards the same objective of facilitating and developing economic activity. However, unlike the association, the legal regime does not allow for self-governance by the members, with the general assembly giving way to the executive body (usually the board of directors). It may therefore be interesting, albeit complex, to create a one-person company entirely owned by an association grouping the members of the community constituted around the common good, so as to develop a substantial economic activity while ensuring democratic management of the whole.A final alternative may be the creation of a cooperative, specifically a Société Coopérative d'Intérêt Collectif (SCIC). This is a cooperative formed from one of the three main forms of commercial company (SA, SARL, SAS), to which a set of cooperative rules is added. The SCIC has for object "the production or the supply of goods and services of collective interest which present a character of social utility".it must imperatively include three categories of co-operators: the beneficiaries of its activity, its employees, as well as the thirds interested by its activity. Given the interest it can have in structuring a community initiated or joined by a public actor, it will also be the subject of a series of posts detailing its specificities.This brief overview of the relevant corporate forms tends to demonstrate that there is no perfect structure that suits any digital commons project. On the contrary, the richness of corporate law, revived by the law on the social economy, allows commons actors to choose from a variety of models the one that best corresponds to the values and objectives of their project. Coming soon: 2 analyses dedicated to the GIP and the SCICFollowing these first reflections, two series of articles (dedicated first to the GIP and then to the SCIC) will soon be proposed. More than a theoretical presentation based on an analysis of the applicable legal framework, jurisprudence and doctrine, the various articles will aim to provide tools for the holders of digital commons who wish to structure a digital commons in such a way as to optimize the participation of the public actor.Elements from interviews and workshops conducted with public and non-public actors of the digital commons will feed these productions.Thus, several articles will provide successive insights: This framework note on the importance of structuring digital commons projects for the public sector An article of theoretical presentation of the GIP Two practical articles addressing the various irritants encountered in the creation and animation of a GIP by the public actor: one concerning the management of the common and the economic model; the other concerning governance and the legal model. A series of articles dedicated to the SCIC (to come - 2nd semester 2022). This post is a publication realized by inno³ for the Digital Society Lab.  Intended to encourage the structuring of digital 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.

• Commons

Published on 17/05/22