#2 - Practical Sheet: Managing and financing a digital commons within a GIP
Summary
This post is part of a research-action process by which the Digital Society Program of the French National Agency for Territorial Cohesion (ANCT) wishes to explore the relevance and use of Public Interest Groups (GIP) for the support of digital commons initiated or joined by a public actor. The aim is to expose the advantages of these structures for the purpose of carrying digital commons, but also to reveal or propose possible solutions to the various limitations encountered by actors in the field.
A two-stage methodology was used, based on bibliographic research and various interviews and workshops, to identify the "irritants" (in the sense of anything that might slow down or block the creation of such ILGs in a context of shared resources) on the one hand, and the formalization of possible solutions on the other.
Four main themes emerged: management of the commons within the GIP; possible business models; legal constitution of GIPs; and governance of the GIP. This post deals with the first two (management of the commons & possible business models), a second post will develop the two remaining themes. Each of these posts will propose recommendations to solve the irritants encountered in relation to one of the four themes identified.
This work mobilizes and completes various pre-existing resources, to which it refers as much as necessary:
- the important educational work and tools developed under the direction of the General Directorate of Public Finance, and in particular the model GIP constitutive agreement;
- the resources developed by the ANCT concerning the digital commons:
Three issues are explored here: the definition of the common object of the GIP; the licenses under which to share the resources produced; but also the financing and sustainability of the common.
I. Defining the common good
The first difficulty that may arise in the context of the creation of a GIP to structure a common project initiated or joined by a public actor is not related to the GIP itself, but to a divergence of understanding by its members of what constitutes a digital common on the one hand, and what the digital common that is the object of the GIP consists of on the other.
A. Ensure that members understand what a common is
The absence of a unanimously recognized definition makes the notion of the digital commons difficult to grasp for public actors. Added to this is the fact that the commons constitutes a mode of organization and production that is radically different from those generally known to public actors.
1. The digital commons: a detrimental lack of definition
In order to overcome the lack of a unanimously accepted definition of what the digital commons are, a major program of acculturation of public agents could be considered.
In the shorter term, mobilizing the various resources produced by the GIP from the outset will resources produced by the ANCT around the digital commons will allow to align the understanding of what is a digital commons between the members of the GIP.
Recommendation 1
Mobilize the resources made available by ANCT to align the understanding of what a digital commons is.
Subsequently, the definition resulting from this work of alignment between members of the GIP can be added to the constitutive agreement.
The definition used by the ANCT is a good starting point for defining a digital commons:
Recommendation 2
Include a definition of the concept of digital commons in Article 2 "Purpose and Territorial Scope" of the GIP's constitutive agreement.
2. Digital commons: a radically different mode of organization and production
The digital commons constitute modes of community organization and resource production that are radically different from those generally mobilized by public actors. It is therefore necessary to anticipate the irritants arising from the lack of acculturation of public actors to the digital commons.
On the one hand, the members of the GIP are not aware that they are contributing to a common good, beyond the sole benefit for their target audiences; and, on the other hand, some actors may equate common good with free.
Recommendation 3
Mobilize the infographic "The digital commons and its resource" produced during NEC, in collaboration with the Collectif BAM and inno³ to raise awareness of how the commons works.
Recommendation 4
Establish a community of ILMs to pool resources and share experiences.
B. Alignment of members with the objective of the GIP
Once the concept of the digital commons has been defined, it is important to ensure that stakeholders agree on the specific commons they aim to produce. For example, it may happen that the actors find themselves around a need or an insufficiently defined objective, which can quickly lead to dissension. A clear and precise definition of the digital common good that is the object of the GIP must be included in the constitutive agreement to remedy this. This commonality must be described from a technical (especially functional) and legal (especially in terms of intellectual property) point of view in order to ensure that the members share the same ambitions for mutualization.
For example, the object of the GIP PIX is precisely defined in the constitutive convention:
"The grouping has a national competence and aims to deliver a certification of digital skills, recognized by the State. It ensures the design, development, updating, deployment, promotion and distribution of an online assessment service and facilitates access to training on these skills for all audiences.
For the purpose of carrying out its non-profit activities of general interest, the grouping may perform all acts and operations of any nature whatsoever for the benefit of the services of the State and its institutions.
Likewise, insofar as they contribute or may contribute to the achievement of its purpose, the group may also work to disseminate the service to other economic operators, whether public or private, by ensuring the sale, transfer or concession of all tangible or intangible goods or services designed by it directly or acquired from third parties, in France and throughout the world
The grouping will also be able to participate in the development of innovative digital approaches of general interest, particularly in the field of training and on digital skills."
Recommendation 5
Include a clear and precise definition of the digital commons in Article 2 of the GIP's constitutive agreement, following the definition of the digital commons concept.
The work of defining the objective towards which the GIP is striving may give rise to divergent interests among the members. This can lead to conflicts that can paralyze the governance of the group. To avoid this, it will be essential to clearly describe the governance mechanisms of the GIP in the constitutive agreement.
Recommendation 6
To co-write the collective agreement with all the stakeholders who wish to do so, and in particular the aspects related to the governance of the GIP and the common.
Recommendation 7
To guarantee the democratic functioning of the GIP by specifying in Article 6 - Statutory rights of the constitutive convention that "in accordance with the democratic principle, each member of the GIP has one vote within the general assembly".
Recommendation 8
Guarantee the democratic functioning of the GIP by specifying in Article 16 - General Assembly of the constitutive agreement that "each member has one vote in the General Assembly".
Recommendation 9
Mobilize the Digital Commons Tutorial - Sustainability Section to identify the governance issues to be anticipated and the best way to formalize them in the constitutive agreement.
Recommendation 10
Conduct a workshop to define the framework for collaboration within the GIP using the Methodology Sheet: Defining the Framework for Project Collaboration from the Digital Commons Tutorial.
Subsequently, a high degree of transparency in exchanges and decision-making can limit irritants arising from diverging interests among members.
Recommendation 11
Set up a consultation platform to make exchanges between GIP members transparent and open, such as a wiki or forum.
II. Choose the free license(s) applied to the resources produced
The choice of the license(s) applied to the resources that are the object of the commons is also a determining factor. Indeed, the absence of a choice of license is as much a risk internally (only one member of the community can at any time question the conditions of reuse of his or her contribution) as externally (third parties can decide not to use the resource given the absence of a contractual vector).
Recommendation 12
To ensure that the conditions for the open-source distribution of resources produced within the GIP are met by relying on the Etalab guides.
Recommendation 13
Choose a license adapted to each type of content created, among those approved.
Recommendation 14
Seek advice from DINUM, Etalab and other actors to choose the right license in the GIP context, its economic model and its objectives.
Recommendation 15
Explain this choice in Title IV - Miscellaneous provisions of the constitutive agreement ("The resources produced by the grouping within the framework of its activity will be shared under free licenses adapted to the different legal regimes of intellectual property: software source codes will be shared under [specify license]; creations subject to the classic regime of copyright will be shared under [specify license]; and databases will be shared under [specify license]")
III. Organizing the financing of the common
The creation, development and maintenance of a digital commons by public actors is not easy, because the needs of the commons do not correspond to the financing habits of the public actor. The challenge that the GIP must meet when it is set up to carry out a digital commons project is to reconcile the investment approach of the members within the GIP in order to respond to a specific problem, and the sustainability of the commons itself through the structure that is the GIP.
Thus, the first irritant that may be encountered concerns the reuse of existing resources to develop the digital commons. Membership in the GIP reflects a desire on the part of the public player to pool resources with other public players with the aim of developing and maintaining a digital commons. However, there remains a strong reluctance to consider the possibility of reusing existing resources produced by third parties, which can be explained by two reasons. First, there is an attachment on the part of the public actor to having a product entirely developed by him or his partners. This can be explained by the fact that it is easier to commit resources to "in-house" development than to the adaptation and implementation of an existing solution. Secondly, the reuse of existing systems and the pooling of developments implies sharing control and decision-making power over the resource, which is not always natural for a public player.
A contradiction can also be felt between the GIP's objective of pooling resources and the need for public actors to justify the mobilization of their resources in a precise manner.
Recommendation 16
Raise awareness of the business model of modern digital services (where investments are made over time and not just at the beginning of the project).
IV. Anticipating the sustainability of the digital commons
The irritants encountered concerning the financing of the GIP and the digital community that is its object can have an impact on the sustainability of the latter over time. Indeed, many actors involved in a GIP fear that the structure will not be able to reach the stage of financial autonomy through its own resources, and will be forced either to die out or to outsource the construction of resources outside the community.
Recommendation 17
Anticipate possible changes in the economic model of the digital commons even before the GIP is set up, in order to ensure that the legal structure is relevant to the economic outlook.
Recommendation 18
Opt for an accounting management of the GIP according to the rules of private law, that is to say the management of an industrial and commercial public service activity, allowing the development of an economic activity (article 17 of the model agreement).
In the longer term, a reflection could be carried out on innovative ways of financing digital commons by the public actor.
Recommendation 19
Implement quasi-government contracts to assist members.
What legal structures to carry digital commons? #Introduction
#2 - Practical Sheet: Managing and financing a digital commons within a GIP
This post is part of a research-action process by which the Digital Society Program of the French National Agency for Territorial Cohesion (ANCT) wishes to explore the relevance and use of Public Interest Groups (GIP) for the support of digital commons initiated or joined by a public actor. The aim is to expose the advantages of these structures for the purpose of carrying digital commons, but also to reveal or propose possible solutions to the various limitations encountered by actors in the field.
A two-stage methodology was used, based on bibliographic research and various interviews and workshops, to identify the "irritants" (in the sense of anything that might slow down or block the creation of such ILGs in a context of shared resources) on the one hand, and the formalization of possible solutions on the other.
Four main themes emerged: management of the commons within the GIP; possible business models; legal constitution of GIPs; and governance of the GIP. This post deals with the first two (management of the commons & possible business models), a second post will develop the two remaining themes. Each of these posts will propose recommendations to solve the irritants encountered in relation to one of the four themes identified.
This work mobilizes and completes various pre-existing resources, to which it refers as much as necessary:
- the important educational work and tools developed under the direction of the General Directorate of Public Finance, and in particular the model GIP constitutive agreement;
- the resources developed by the ANCT concerning the digital commons:
Three issues are explored here: the definition of the common object of the GIP; the licenses under which to share the resources produced; but also the financing and sustainability of the common.
I. Defining the common good
The first difficulty that may arise in the context of the creation of a GIP to structure a common project initiated or joined by a public actor is not related to the GIP itself, but to a divergence of understanding by its members of what constitutes a digital common on the one hand, and what the digital common that is the object of the GIP consists of on the other.
A. Ensure that members understand what a common is
The absence of a unanimously recognized definition makes the notion of the digital commons difficult to grasp for public actors. Added to this is the fact that the commons constitutes a mode of organization and production that is radically different from those generally known to public actors.
1. The digital commons: a detrimental lack of definition
In order to overcome the lack of a unanimously accepted definition of what the digital commons are, a major program of acculturation of public agents could be considered.
In the shorter term, mobilizing the various resources produced by the GIP from the outset will resources produced by the ANCT around the digital commons will allow to align the understanding of what is a digital commons between the members of the GIP.
Recommendation 1
Mobilize the resources made available by ANCT to align the understanding of what a digital commons is.
Subsequently, the definition resulting from this work of alignment between members of the GIP can be added to the constitutive agreement.
The definition used by the ANCT is a good starting point for defining a digital commons:
Recommendation 2
Include a definition of the concept of digital commons in Article 2 "Purpose and Territorial Scope" of the GIP's constitutive agreement.
2. Digital commons: a radically different mode of organization and production
The digital commons constitute modes of community organization and resource production that are radically different from those generally mobilized by public actors. It is therefore necessary to anticipate the irritants arising from the lack of acculturation of public actors to the digital commons.
On the one hand, the members of the GIP are not aware that they are contributing to a common good, beyond the sole benefit for their target audiences; and, on the other hand, some actors may equate common good with free.
Recommendation 3
Mobilize the infographic "The digital commons and its resource" produced during NEC, in collaboration with the Collectif BAM and inno³ to raise awareness of how the commons works.
Recommendation 4
Establish a community of ILMs to pool resources and share experiences.
B. Alignment of members with the objective of the GIP
Once the concept of the digital commons has been defined, it is important to ensure that stakeholders agree on the specific commons they aim to produce. For example, it may happen that the actors find themselves around a need or an insufficiently defined objective, which can quickly lead to dissension. A clear and precise definition of the digital common good that is the object of the GIP must be included in the constitutive agreement to remedy this. This commonality must be described from a technical (especially functional) and legal (especially in terms of intellectual property) point of view in order to ensure that the members share the same ambitions for mutualization.
For example, the object of the GIP PIX is precisely defined in the constitutive convention:
"The grouping has a national competence and aims to deliver a certification of digital skills, recognized by the State. It ensures the design, development, updating, deployment, promotion and distribution of an online assessment service and facilitates access to training on these skills for all audiences.
For the purpose of carrying out its non-profit activities of general interest, the grouping may perform all acts and operations of any nature whatsoever for the benefit of the services of the State and its institutions.
Likewise, insofar as they contribute or may contribute to the achievement of its purpose, the group may also work to disseminate the service to other economic operators, whether public or private, by ensuring the sale, transfer or concession of all tangible or intangible goods or services designed by it directly or acquired from third parties, in France and throughout the world
The grouping will also be able to participate in the development of innovative digital approaches of general interest, particularly in the field of training and on digital skills."
Recommendation 5
Include a clear and precise definition of the digital commons in Article 2 of the GIP's constitutive agreement, following the definition of the digital commons concept.
The work of defining the objective towards which the GIP is striving may give rise to divergent interests among the members. This can lead to conflicts that can paralyze the governance of the group. To avoid this, it will be essential to clearly describe the governance mechanisms of the GIP in the constitutive agreement.
Recommendation 6
To co-write the collective agreement with all the stakeholders who wish to do so, and in particular the aspects related to the governance of the GIP and the common.
Recommendation 7
To guarantee the democratic functioning of the GIP by specifying in Article 6 - Statutory rights of the constitutive convention that "in accordance with the democratic principle, each member of the GIP has one vote within the general assembly".
Recommendation 8
Guarantee the democratic functioning of the GIP by specifying in Article 16 - General Assembly of the constitutive agreement that "each member has one vote in the General Assembly".
Recommendation 9
Mobilize the Digital Commons Tutorial - Sustainability Section to identify the governance issues to be anticipated and the best way to formalize them in the constitutive agreement.
Recommendation 10
Conduct a workshop to define the framework for collaboration within the GIP using the Methodology Sheet: Defining the Framework for Project Collaboration from the Digital Commons Tutorial.
Subsequently, a high degree of transparency in exchanges and decision-making can limit irritants arising from diverging interests among members.
Recommendation 11
Set up a consultation platform to make exchanges between GIP members transparent and open, such as a wiki or forum.
II. Choose the free license(s) applied to the resources produced
The choice of the license(s) applied to the resources that are the object of the commons is also a determining factor. Indeed, the absence of a choice of license is as much a risk internally (only one member of the community can at any time question the conditions of reuse of his or her contribution) as externally (third parties can decide not to use the resource given the absence of a contractual vector).
Recommendation 12
To ensure that the conditions for the open-source distribution of resources produced within the GIP are met by relying on the Etalab guides.
Recommendation 13
Choose a license adapted to each type of content created, among those approved.
Recommendation 14
Seek advice from DINUM, Etalab and other actors to choose the right license in the GIP context, its economic model and its objectives.
Recommendation 15
Explain this choice in Title IV - Miscellaneous provisions of the constitutive agreement ("The resources produced by the grouping within the framework of its activity will be shared under free licenses adapted to the different legal regimes of intellectual property: software source codes will be shared under [specify license]; creations subject to the classic regime of copyright will be shared under [specify license]; and databases will be shared under [specify license]")
III. Organizing the financing of the common
The creation, development and maintenance of a digital commons by public actors is not easy, because the needs of the commons do not correspond to the financing habits of the public actor. The challenge that the GIP must meet when it is set up to carry out a digital commons project is to reconcile the investment approach of the members within the GIP in order to respond to a specific problem, and the sustainability of the commons itself through the structure that is the GIP.
Thus, the first irritant that may be encountered concerns the reuse of existing resources to develop the digital commons. Membership in the GIP reflects a desire on the part of the public player to pool resources with other public players with the aim of developing and maintaining a digital commons. However, there remains a strong reluctance to consider the possibility of reusing existing resources produced by third parties, which can be explained by two reasons. First, there is an attachment on the part of the public actor to having a product entirely developed by him or his partners. This can be explained by the fact that it is easier to commit resources to "in-house" development than to the adaptation and implementation of an existing solution. Secondly, the reuse of existing systems and the pooling of developments implies sharing control and decision-making power over the resource, which is not always natural for a public player.
A contradiction can also be felt between the GIP's objective of pooling resources and the need for public actors to justify the mobilization of their resources in a precise manner.
Recommendation 16
Raise awareness of the business model of modern digital services (where investments are made over time and not just at the beginning of the project).
IV. Anticipating the sustainability of the digital commons
The irritants encountered concerning the financing of the GIP and the digital community that is its object can have an impact on the sustainability of the latter over time. Indeed, many actors involved in a GIP fear that the structure will not be able to reach the stage of financial autonomy through its own resources, and will be forced either to die out or to outsource the construction of resources outside the community.
Recommendation 17
Anticipate possible changes in the economic model of the digital commons even before the GIP is set up, in order to ensure that the legal structure is relevant to the economic outlook.
Recommendation 18
Opt for an accounting management of the GIP according to the rules of private law, that is to say the management of an industrial and commercial public service activity, allowing the development of an economic activity (article 17 of the model agreement).
In the longer term, a reflection could be carried out on innovative ways of financing digital commons by the public actor.
Recommendation 19
Implement quasi-government contracts to assist members.
Labo Société Numérique