Introduction
Context and objectives
For several years, public actors have benefited from resources that facilitate and accompany the securing of solutions based on open source software in the context of public procurement. This can be in the form of tailor-made clauses that specify or derogate from the General Administrative Clauses, or best practices to be implemented before, during and after the award of the contract.As the use of open source software increases, there is a growing need for these actors to go beyond this by defining and implementing a digital strategy that aims at emergence, maintenance and perpetuation in a logic of digital commons. In concrete terms, this means both d'involve citizens and economic actors in the process, but also d'encourage mutualization between public and private actors.
Références :
Issues
The aim is to complete the existing resources (notably the Tutorial to the Digital Commons) with an approach to public procurement that is specific to the Digital Commons, in the spirit of the generic clauses that can be used for free software. The objective is to give public actors the elements that will allow them to understand and integrate everything that will ensure the development and sustainability of the Digital Commons by the service providers retained in the framework of public contracts (and to share some standards allowing d'Référence :
to achieve these objectives).Issues & Methodology
This publication aims to raise the awareness of public actors awarding public contracts on the legal, technical and organizational best practices to be integrated into the contract in order to secure the use of the Digital Commons. It is based in particular on the recognition by the judge of the freedoms that the use of Open Source software gives to administrations in terms of competition law (see post Public procurement, Open Source and digital commons), allowing to explore further the other issues and problems that public actors wishing to use digital commons in the context of public procurement are faced with. At the same time, it goes beyond the framework of a simple theoretical study in order to propose practical content that can be directly and easily activated by actors in the field.To this end, the publication proposes various clauses that derogate from or complete the CCAG-TIC (in its latest version dated March 30, 2021) in its part concerning public contracts for the supply of software, in order to adapt it to the context and the particular challenges of the Digital Commons.
This publication is a first iteration of a work that will evolve according to the feedback of public actors who will mobilize it in the procurement process.
Références :
Contents
This article is structured around 6 issues:
- 1. Definition of specific terms used
- 2. Management of previous contributions
- 3. Structuring of governance
- 4. Framing of redistribution
- 5. Managing the interface of the market with a pre-existing legal framework
- 6. Framing of reversibility
Référence :
1 - Definition of specific terms used
Issues
In order to adapt to the context and to the issues specific to the development of digital commons, the public contract proposed by the public actor wishing to be part of such a dynamic will have to derogate from the Cahier des clauses administratives générales applicable on a certain number of points (the following reflections are mainly based on the CCAG-TIC).If certain modalities take up those already tested in the context of the recourse to free software within the framework of such a contract, other modalities proposed thereafter by the present note are specific to the problems and stakes of the digital Commons and do not profit from such a hindsight as for their practical mobilization within the framework of the drafting of a public contract. For this reason, it is important, prior to any public contract whose objective is the use of digital commons, to clearly define the terms that will be used subsequently in the drafting of the clauses derogating from the CCAG-TIC, in order to ensure the legal security of the whole for the parties involved.
To this end, several terms can usefully benefit from a definition that is completed and adapted to the context of the use of the Digital Commons in the context of a public market.
Proposed solutions
In the preamble
In order to adapt the GCC-ICT to the conditions of a contract concerning the development of a digital commons, it will be necessary to complete the preamble in order to specify this objective, and to enrich the standard definitions proposed.
Definitions
The use of standards is a factor of legal security. This is why the definitions proposed below are taken from the "IT Procurement and Intellectual Property" Guide, with the exception of that of Open Source License - taken from the Advice on drafting intellectual property clauses for open source software development and maintenance contractsRéférences :
-, and that of Digital Commons - suggested on the basis of the various recurrent definitions of the notion.2 - Framing the methods of sharing the various results
Issues
Even more than when free software is mobilized, the constitution d'a response to a public contract by the development ofa Digital Commons implies a rigorous management of the intellectual property of the mobilized resources. Indeed, the notions of Digital Commons and Free Software are not equivalent and cannot be confused. The main difference lies in the fact that thata common good implies a collective and democratic governance of the resource by the community of its contributors and users, in addition to the respect of the license under which the resource is shared, to l'like free software.
Therefore, it is important to clearly delimit which Results will be under the Community, sharing under a free license or proprietary model as early as possible in the l'preparation of the contract, in order to facilitate the management of the intellectual property rights attached, and in particular the prior knowledge mobilized ; but also to support the choice of licenses to be applied to each module according to the desired compatibility between them ; and finally to make the final project as readable as possible for third parties in order to facilitate reuse and contributions.
The criterion of distinction could be the generic or specific purpose of the developments :
-
→ generic purpose : mutualization as Community and strong support by the community concerned ;
-
→ specific purpose : shared under a free license in order to allow a mutualization ;
-
→ technical, legal or economic imperative: proprietary format with true consideration of interoperability issues.
Proposals for additional standardized clauses and good practices
A good practice to adopt in this situation is to take particular care in the choice of the licenses under which the resources will be submitted later; but also to adapt the intellectual property clause of the contract.
Choosing the right licenses
Given the diversity of the modalities for sharing Resultsand the need for d'to ensure the compatibility between them within the framework of the project, it is important to choose, for each modality of sharing (free software, digital commons, proprietary software) compatible licenses between them.
In order to s'To ensure that the licenses are compatible, you can consult a compatibility table between licenses and contact your legal department.
3 - Anticipate the management of prior knowledge
Issues
The constitution, development and sustainability of a Digital Commons rely on the contributions of its users, and therefore most often on a policy of intellectual property management that assumes a sharing under the same conditions of the developments that would be produced on the basis of the pooled resource.Thus, it is important to have a good overview of the licenses attached to the Prior Knowledge mobilized by the provider in the elaboration of its response to the contract, in order to ensure on the one hand the compatibility of the licenses of the reused components with the conditions of sharing envisaged; and on the other hand to ensure traceability in the management of the intellectual property rights attached to the Digital Commons
Référence :
Proposals for additional standardized clauses and good practices
Good practices
Ensuring that the licenses governing Prior Knowledge are compatible with the terms of sharing of the Digital Commons as desired by the public stakeholder is essential to avoid any licensing conflicts that could lead to litigation and harm to the public stakeholder.This step presupposes a clear and precise vision of the conditions for sharing each component of the Digital Commons (see Framing the terms of sharing of the various Results)
In order to secure the compatibility of Prior Knowledge licenses with the commonality objectives, several actions can be taken:
- → raise awareness internally of how Open Source Licenses work;
- → implement a label for licenses that meet market objectives;
- → appoint a referent on these issues;
- → consider setting up a Developer Certificate of Origin (DCO), or even a Contributor License Agreement (CLA), to ensure the authorship of prior knowledge.
Référence :
Suggested clauses
Regarding the adaptation of the public contract to these particular issues, several clauses must be considered.4 - Structuring governance
Issues
The constitution of a digital commons, unlike the development of Free Software, presupposes an increased cooperation of the different stakeholders interested in the development of the resource at the center of the commons. This cooperation requires a shared and democratic governance of the resource, which requires a minimum of structuring. Such a structure makes it possible to increase the transparency of the project's management and thus to increase the mutual trust of the parties involved. Furthermore, structured governance of a resource is a factor of confidence in the project and encourages the use and contribution of third parties, who will then be more inclined to take part in the development and maintenance of the common good through increased involvement in its governance.Proposals for additional standardized clauses and good practices
Good practices
It will be interesting to adopt a collaboration charter specific to shared developments in the form of Digital Commons, which defines the roles and rights of the various stakeholders.- →Tutorialto the digital commons
- →Federation Charter. In some cases, the collaboration charter may be supplemented by the establishment of a legal structure to structure the governance of the project
- →Typology oflegal structures to be considered
Suggested clauses
5 - Managing the interface of the market with a pre-existing legal framework
One of the characteristics of the Digital Commons is the collaborative frameworks for the use and maintenance of their resources. Thus, it is necessary to ensure that the contributions made within the framework of the market comply with this framework, otherwise they will not be accepted and maintained by the community. Conversely, compliance with this framework is a prerequisite for the developments carried out within the framework of the market to be useful to the community that wishes to benefit from such contributions. More globally, specifically imposing the respect of this collaboration framework is an optimal solution to allow different actors -- public and private -- to mutualize their investments.Thus, for each common under consideration, the addition of an obligation for the recipient to comply with the collaboration frameworks related to the resources used could be studied.
6 - Provide for reversibility
Issues
Reversibility, in the context of a public contract for IT development, means the ability of the contracting authority to recover, at the end of the contract, all the data and the related documentation necessary for the continued use of the developments that are the subject of the contract, either internally or through the award of a new contract. In the context of a development of resources under an Open Source License, reversibility also refers to the ability for the contracting authority to change the open source policy applied to these developments. It can be facilitated and secured by adding specific clauses.Suggested clauses
---
The Digital Society Lab proposes to take a critical look at the ethical and social challenges of digital technology. In this context, the firm Inno³ is producing a series of resources for public actors wishing to mobilize the potential of the digital commons in their strategy. Throughout the year, these articles decipher the legal and economic challenges of the digital commons.Intended to promote the emergence of a common legal doctrine on the subject of commons produced or supported by the administration, they are 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 replace the opinions that must be sought from the competent people in 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.Sources
- 1. GCC-ICT
- 2. Direction des Affaires juridiques - Mission Appui au patrimoine immatériel de l'État)
- 3. Intellectual service contracts: copyright assignment clauses in the CCAG PI
- 4. The Digital Commons Toolkit
- 5. GCC-ICT
- 6. the page dedicated to the CCAG-TIC on the API / DAJ website
- 7. Practical notebook
- 8. APIE.
- 9. Order of March 30, 2021 approving the general administrative clauses of public contracts for information and communication technology
- 10. Guide " IT Purchasing and Intellectual Property
- 11. Advice on drafting intellectual property clauses for open source software development and maintenance contracts
- 12. Principles of open source code
- 13. Principles of open source code
How to secure the use of digital commons in a public procurement?
Introduction
Context and objectives
For several years, public actors have benefited from resources that facilitate and accompany the securing of solutions based on open source software in the context of public procurement. This can be in the form of tailor-made clauses that specify or derogate from the General Administrative Clauses, or best practices to be implemented before, during and after the award of the contract.As the use of open source software increases, there is a growing need for these actors to go beyond this by defining and implementing a digital strategy that aims at emergence, maintenance and perpetuation in a logic of digital commons. In concrete terms, this means both d'involve citizens and economic actors in the process, but also d'encourage mutualization between public and private actors.
Références :
Issues
The aim is to complete the existing resources (notably the Tutorial to the Digital Commons) with an approach to public procurement that is specific to the Digital Commons, in the spirit of the generic clauses that can be used for free software. The objective is to give public actors the elements that will allow them to understand and integrate everything that will ensure the development and sustainability of the Digital Commons by the service providers retained in the framework of public contracts (and to share some standards allowing d'Référence :
to achieve these objectives).Issues & Methodology
This publication aims to raise the awareness of public actors awarding public contracts on the legal, technical and organizational best practices to be integrated into the contract in order to secure the use of the Digital Commons. It is based in particular on the recognition by the judge of the freedoms that the use of Open Source software gives to administrations in terms of competition law (see post Public procurement, Open Source and digital commons), allowing to explore further the other issues and problems that public actors wishing to use digital commons in the context of public procurement are faced with. At the same time, it goes beyond the framework of a simple theoretical study in order to propose practical content that can be directly and easily activated by actors in the field.To this end, the publication proposes various clauses that derogate from or complete the CCAG-TIC (in its latest version dated March 30, 2021) in its part concerning public contracts for the supply of software, in order to adapt it to the context and the particular challenges of the Digital Commons.
This publication is a first iteration of a work that will evolve according to the feedback of public actors who will mobilize it in the procurement process.
Références :
Contents
This article is structured around 6 issues:
- 1. Definition of specific terms used
- 2. Management of previous contributions
- 3. Structuring of governance
- 4. Framing of redistribution
- 5. Managing the interface of the market with a pre-existing legal framework
- 6. Framing of reversibility
Référence :
1 - Definition of specific terms used
Issues
In order to adapt to the context and to the issues specific to the development of digital commons, the public contract proposed by the public actor wishing to be part of such a dynamic will have to derogate from the Cahier des clauses administratives générales applicable on a certain number of points (the following reflections are mainly based on the CCAG-TIC).If certain modalities take up those already tested in the context of the recourse to free software within the framework of such a contract, other modalities proposed thereafter by the present note are specific to the problems and stakes of the digital Commons and do not profit from such a hindsight as for their practical mobilization within the framework of the drafting of a public contract. For this reason, it is important, prior to any public contract whose objective is the use of digital commons, to clearly define the terms that will be used subsequently in the drafting of the clauses derogating from the CCAG-TIC, in order to ensure the legal security of the whole for the parties involved.
To this end, several terms can usefully benefit from a definition that is completed and adapted to the context of the use of the Digital Commons in the context of a public market.
Proposed solutions
In the preamble
In order to adapt the GCC-ICT to the conditions of a contract concerning the development of a digital commons, it will be necessary to complete the preamble in order to specify this objective, and to enrich the standard definitions proposed.
Definitions
The use of standards is a factor of legal security. This is why the definitions proposed below are taken from the "IT Procurement and Intellectual Property" Guide, with the exception of that of Open Source License - taken from the Advice on drafting intellectual property clauses for open source software development and maintenance contractsRéférences :
-, and that of Digital Commons - suggested on the basis of the various recurrent definitions of the notion.2 - Framing the methods of sharing the various results
Issues
Even more than when free software is mobilized, the constitution d'a response to a public contract by the development ofa Digital Commons implies a rigorous management of the intellectual property of the mobilized resources. Indeed, the notions of Digital Commons and Free Software are not equivalent and cannot be confused. The main difference lies in the fact that thata common good implies a collective and democratic governance of the resource by the community of its contributors and users, in addition to the respect of the license under which the resource is shared, to l'like free software.
Therefore, it is important to clearly delimit which Results will be under the Community, sharing under a free license or proprietary model as early as possible in the l'preparation of the contract, in order to facilitate the management of the intellectual property rights attached, and in particular the prior knowledge mobilized ; but also to support the choice of licenses to be applied to each module according to the desired compatibility between them ; and finally to make the final project as readable as possible for third parties in order to facilitate reuse and contributions.
The criterion of distinction could be the generic or specific purpose of the developments :
-
→ generic purpose : mutualization as Community and strong support by the community concerned ;
-
→ specific purpose : shared under a free license in order to allow a mutualization ;
-
→ technical, legal or economic imperative: proprietary format with true consideration of interoperability issues.
Proposals for additional standardized clauses and good practices
A good practice to adopt in this situation is to take particular care in the choice of the licenses under which the resources will be submitted later; but also to adapt the intellectual property clause of the contract.
Choosing the right licenses
Given the diversity of the modalities for sharing Resultsand the need for d'to ensure the compatibility between them within the framework of the project, it is important to choose, for each modality of sharing (free software, digital commons, proprietary software) compatible licenses between them.
In order to s'To ensure that the licenses are compatible, you can consult a compatibility table between licenses and contact your legal department.
3 - Anticipate the management of prior knowledge
Issues
The constitution, development and sustainability of a Digital Commons rely on the contributions of its users, and therefore most often on a policy of intellectual property management that assumes a sharing under the same conditions of the developments that would be produced on the basis of the pooled resource.Thus, it is important to have a good overview of the licenses attached to the Prior Knowledge mobilized by the provider in the elaboration of its response to the contract, in order to ensure on the one hand the compatibility of the licenses of the reused components with the conditions of sharing envisaged; and on the other hand to ensure traceability in the management of the intellectual property rights attached to the Digital Commons
Référence :
Proposals for additional standardized clauses and good practices
Good practices
Ensuring that the licenses governing Prior Knowledge are compatible with the terms of sharing of the Digital Commons as desired by the public stakeholder is essential to avoid any licensing conflicts that could lead to litigation and harm to the public stakeholder.This step presupposes a clear and precise vision of the conditions for sharing each component of the Digital Commons (see Framing the terms of sharing of the various Results)
In order to secure the compatibility of Prior Knowledge licenses with the commonality objectives, several actions can be taken:
- → raise awareness internally of how Open Source Licenses work;
- → implement a label for licenses that meet market objectives;
- → appoint a referent on these issues;
- → consider setting up a Developer Certificate of Origin (DCO), or even a Contributor License Agreement (CLA), to ensure the authorship of prior knowledge.
Référence :
Suggested clauses
Regarding the adaptation of the public contract to these particular issues, several clauses must be considered.4 - Structuring governance
Issues
The constitution of a digital commons, unlike the development of Free Software, presupposes an increased cooperation of the different stakeholders interested in the development of the resource at the center of the commons. This cooperation requires a shared and democratic governance of the resource, which requires a minimum of structuring. Such a structure makes it possible to increase the transparency of the project's management and thus to increase the mutual trust of the parties involved. Furthermore, structured governance of a resource is a factor of confidence in the project and encourages the use and contribution of third parties, who will then be more inclined to take part in the development and maintenance of the common good through increased involvement in its governance.Proposals for additional standardized clauses and good practices
Good practices
It will be interesting to adopt a collaboration charter specific to shared developments in the form of Digital Commons, which defines the roles and rights of the various stakeholders.- →Tutorialto the digital commons
- →Federation Charter. In some cases, the collaboration charter may be supplemented by the establishment of a legal structure to structure the governance of the project
- →Typology oflegal structures to be considered
Suggested clauses
5 - Managing the interface of the market with a pre-existing legal framework
One of the characteristics of the Digital Commons is the collaborative frameworks for the use and maintenance of their resources. Thus, it is necessary to ensure that the contributions made within the framework of the market comply with this framework, otherwise they will not be accepted and maintained by the community. Conversely, compliance with this framework is a prerequisite for the developments carried out within the framework of the market to be useful to the community that wishes to benefit from such contributions. More globally, specifically imposing the respect of this collaboration framework is an optimal solution to allow different actors -- public and private -- to mutualize their investments.Thus, for each common under consideration, the addition of an obligation for the recipient to comply with the collaboration frameworks related to the resources used could be studied.
6 - Provide for reversibility
Issues
Reversibility, in the context of a public contract for IT development, means the ability of the contracting authority to recover, at the end of the contract, all the data and the related documentation necessary for the continued use of the developments that are the subject of the contract, either internally or through the award of a new contract. In the context of a development of resources under an Open Source License, reversibility also refers to the ability for the contracting authority to change the open source policy applied to these developments. It can be facilitated and secured by adding specific clauses.Suggested clauses
---
The Digital Society Lab proposes to take a critical look at the ethical and social challenges of digital technology. In this context, the firm Inno³ is producing a series of resources for public actors wishing to mobilize the potential of the digital commons in their strategy. Throughout the year, these articles decipher the legal and economic challenges of the digital commons.Intended to promote the emergence of a common legal doctrine on the subject of commons produced or supported by the administration, they are 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 replace the opinions that must be sought from the competent people in 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.Sources
- 1. GCC-ICT
- 2. Direction des Affaires juridiques - Mission Appui au patrimoine immatériel de l'État)
- 3. Intellectual service contracts: copyright assignment clauses in the CCAG PI
- 4. The Digital Commons Toolkit
- 5. GCC-ICT
- 6. the page dedicated to the CCAG-TIC on the API / DAJ website
- 7. Practical notebook
- 8. APIE.
- 9. Order of March 30, 2021 approving the general administrative clauses of public contracts for information and communication technology
- 10. Guide " IT Purchasing and Intellectual Property
- 11. Advice on drafting intellectual property clauses for open source software development and maintenance contracts
- 12. Principles of open source code
- 13. Principles of open source code
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