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 regimes. Indeed, it is these resources produced, and the rights derived from them, that will be the object of a collaborative effort.ation and a sharing among the members of the community.

In order to help you in this identification, several data sheets are proposed to you:

• → Identify copyrighted objects and associated prerogatives;

• → Identify the objects protected by the database producer's right and associated prerogatives

Référence : 1

Sheet 2 - Identifying intellectual property rights holders

Thus, the initial owner of sui generis rights on 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. Acts that may be performed by these contributors, such as reproduction, modification or reuse, should in principle be authorized by the rights holders.

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 the contributors do not own, and that they will therefore not be able to transfer or license)

In order to help you in this identification, several technical sheets are proposed:

• → Identify copyright owners;
• → Identify sui generis database right holders;

Sheet 3 - Knowing the obligations and rights arising from Open Data

Open Data aims to ensure the availability and free reuse by all of data held by a third party.

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(technical sheets 3.1 and 3.1bis specifically for source codes) ;

• → the reuse of public information(data sheet 3.2).

The digital commons developed under the impetus of an administration can be considered as administrative documents as long as they are developed within the framework of public service missions by administrations and/or persons under private law. They are 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(Technical Sheet 5.1 - 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 in the context of public service or non public service missions ;

• → the existence of intellectual property rights held by third parties or not.

Sheet 4 - Managing the (transfer) of rights

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.

For more information, see Fact Sheet 4.1 - Contractual Management in Copyright.

Sheet 5 - Choosing the right license

As a matter of principle, the Law for a Digital Republic (LPRN) does not require administrations to distribute datasets under a specific 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 reuse framework defined by the law, thereby strengthening legal security and the trust established between the administration and reusers ;

• → in the presence of intellectual property rights (notably copyright), to grant 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.

Licenses are non-exclusive contracts of assignment of intellectual property rights, granted for the whole world and for the entire duration of the rights, by which a right holder authorizes a licensee free of charge to copy, modify and distribute its creation. Based on a broader base than copyright alone, these licenses also include contract law and sui generis database law.

There are different Open Data licenses, each with its own specificities, presented in the Data Sheet 5.1 - Open Data Licenses