Associations and digital commons share many similarities, which go a long way towards explaining the use of associations to structure digital commons projects, by both private and public players.

As far as public-sector players are concerned, the popularity of the association as a tool for structuring digital commons is undoubtedly due to the fact that the association enables public-sector players to rapidly structure and empower a digital commons project, and thus facilitate the creation of a community around it. This is achieved by meeting a number of objectives set for it as part of its public service mission:

• Pooling the material, financial and human resources needed to carry out public service missions
• Collaboration with local private-sector players; participative democracy, etc.

As a result, the association is the legal tool of choice for facilitating the creation or participation of a public player in a digital commons project. Indeed, a public-sector player can set up an association to take charge of the digital commons it has initiated, and open up its governance to other players, public or private. But creating an association to structure a commons project initiated by someone other than the public player will also facilitate the latter's participation. Once structured as an association, a community can not only open up its governance to the public player, but also be eligible for subsidies to finance its maintenance and development.

In this first article, we :

• Let's propose a definition for each of these two notions
• Appreciating the relevance of the association as a legal tool for structuring digital commons projects

In defining the association and the digital commons, the convergence of these two notions is obvious.

Definition of the association, a suitable structure for organizing a community of heterogeneous players

Article 1 of the French law of July 1, 1901 defines an association as "a convention by which two or more persons permanently pool their knowledge or activities for a purpose other than sharing profits".

Above all, the freedom to set up an association is protected at international, European and national level as a constitutional freedom. However, the association will only be granted legal personality, and therefore legal capacity, once it has been published in the Journal Officiel following a declaration of its creation by its founders.

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Defining the digital commons and the challenges facing public-sector players

Although the notion of the digital commons has not been precisely defined, it now commonly refers to the idea of one or more digital resources produced and maintained collectively by a community of heterogeneous players, according to self-defined rules of governance that ensure their democratic and open nature. Today, the digital commons are increasingly mobilized by public players, particularly local authorities. Whether they initiate them or join pre-existing projects, local authorities see digital commons as innovative tools for renewing public services and strengthening participatory democracy; but also as means of pooling resources between local authorities, and even between public players.

The association offers a number of advantages when it comes to supporting or structuring a digital commons project.

Easy to create

The association can be set up without any initial capital, making it an easy tool to create, while its unrestrictive legal status makes it a common governance structure that's easy to set up, and enables collaboration between associative, industrial and public players.

Statutory freedom

The association's legal regime is fairly succinct, referring to the articles of association for the essentials of its organization and governance. This ensures that the community retains control over the definition of the rules of governance of the community. Thus, apart from the obligation to declare the association in order to obtain legal personality, the law of July 1, 1901 sets no obligations for associations, giving the community great flexibility in the organization and operation of its legal structure.

Sharing knowledge and activities

The essence of the association is above all the sharing of knowledge and/or activities. This presupposes that members invest in the life of the association, both physically and intellectually, and not just materially. Indeed, membership cannot be conferred simply by paying dues, which are in no way compulsory. The association thus takes shape through the pooling by the parties of knowledge and activities, as well as of goods in support of the latter.

Selfless purpose

Disinterested purpose is one of the characteristics that distinguish the association from the company. Disinterested management implies that the association's directors carry out their activities on a voluntary basis; the association does not make any direct or indirect distribution of profits, in any form whatsoever; the association's members and their beneficiaries do not hold any share whatsoever in the association's assets.

The possible federation of associations

In addition to meeting commoners' desire to self-define the rules of governance of their common, the contractual logic of the association makes it easy to group associations together. Two types of grouping are possible: the union and the federation. The federation is a union of associations at any level, while the union is a grouping of associations which may themselves already be grouped into federations.

The possible federation of ministries of a union, and by extension of a federation, are the same as those applicable to first-level associations. This makes it possible to imagine a territorial network involving local authorities, around a digital community project on a national or even international scale.

The main irritant concerning the mobilization of the association to structure digital commons will concern the participation of legal entities under public law; but the association will also be limited in its ability to support the economic development of a digital commons.

Participation of legal entities governed by public law

The participation of legal entities governed by public law in an association is subject to a number of conditions:

• such membership must be in line with the missions of the public-sector body concerned
• a local authority's participation in an association must be in the local interest
• the legal entity's representative in an association may not personally participate in that same association
• the legal entity under public law must avoid interfering in the association's management
• membership of an association by a legal entity governed by public law must not have the purpose or effect of circumventing public accounting rules.

These limitations on freedom of association are minimal, and concern only a few special cases. In fact, the principle of freedom, deriving from the conventional nature of the association, is very prevalent and extends to the great freedom given to members in organizing the association.

Limitations on the economic and commercial activities of an association

The development of commercial activity by associations is limited first and foremost by the requirements for recognition as a merchant, and the advantages that this brings, which are essential from the point of view of an economic activity competing with that of commercial operators.

What's more, the conditions required of an association before it can have an economic or commercial activity are relatively onerous, and therefore antagonistic to the flexibility that makes the association such a successful tool for structuring the commons.

But this great flexibility, which stems from the freedom given to the association's statutes to organize itself, is a vector of legal insecurity, limiting the concrete possibilities of contracting and thus developing an economic activity that will ensure the sustainability of the digital commons project supported by the associative structure. Anyone entering into a contract with the association must take the following precautions:

• consult the articles of association to find out which body is authorized to represent the association, i.e. to act in its name and on its behalf;
• ensure that this conventional representative has been duly appointed;
• check that the association's representative acts within the limits of the association's purpose and does not exceed the powers conferred on him/her at the time of appointment.

This requires a considerable amount of work, which limits the association's ability to contract with third parties, and therefore calls into question the relevance of this model to the economic sustainability of the associative model.

Thus, an association wishing to develop a commercial activity will seek to make its operations as transparent as possible for third parties. This means, for example, making the articles of association, by-laws and minutes of general meetings available on a website. This limitation on the association's economic activity will make the granting of public funding all the more important for both the association and the general public.