One of the pragmatic solutions supported by the P2P Foundation is the CopyFair license, which combines free knowledge sharing, with a demand for reciprocity for the commons’ base, in case of commercialization. Coopify is an example of such a license, developed by the Coop des Communs in France, and association which works on commons-cooperative convergence and wants to use such a license for itself and promote it within the solidarity economy networks in France.

Text: Lionel Maurel.  English translation: Pascasle Garbaye. See P2P Foundation wiki for original French version.

About

The purpose of this policy, proposed by Lionel Maurel, is to establish the governance principles in force within the association “La Coop des Communs” for the management of the rights to the productions of its members, in particular within the framework of the activities of its working groups.

The Coopyright proposal has the advantage of simply implementing a certain logic of reciprocity, but without having to write a new license, since everything is based on two already well-known Creative Commons licenses.

It’s about articulating:

  • ”’Internal reciprocity”’: working groups remain free to choose whether and how their productions are made public.

Unless special circumstances warrant it and after approval of the board of directors of the association La Coop des Communs, they are by default placed under the Creative Commons CC-BY-NC-ND 4.0 (Attribution – No Commercial Use – No modification),

For the active contributors to La Coop des Communs, the reuse of workgroup productions would be carried out according to the terms of the Creative Commons CC-BY-SA 4.0 licence (Paternity – Identical sharing).

The Coop des Communs does not ask the authors for an assignment of rights.

The groups will therefore have to deliberate on their uses.

  • ”’co-management, between the groups and the association, of the uses according to whether or not they are the result of non-profit or limited-profit organisations”’.

In the case of lucrative commercial use, a fee may be charged. A non-profit or limited lucrative use should be exempt from royalty.

The system is made operational by the ability to discriminate against the non-profit sector and limited lucrativity. An international application could be based on the current interpretation of these terms in each country concerned.

Introduction

For several years, a debate is in progress on the opportunity to create new licences, which would be neither “free” licences (such as GNU-GPL type) nor “open” licences (such as Creative Commons type). Many proposals, based on the concept of “strengthened reciprocal licence”, have been elaborated. The first proposal, coming from Dmitry Kleiner, was the Peer Production licence and the Belgian Michel Bauwens worked out the concept of “Copyfair”, which is for him fundamental for a transition to “Commons Economics”.

He summarizes these ideas as follows:

Copyleft licences allow anyone to re-use shared knowledge provided that modifications and improvements are added to these same commons. It’s a major step, but we cannot ignore the need for fairness. When moving to production of physical objects which requires finding resources for buildings, raw materials and payments for contributors, the unimpeded commercial exploitation of these commons favours extractive models.

Thus, it’s essential to maintain the idea of knowledge sharing, but also to request reciprocity for the commercial exploitation of these commons, to open up a sphere of activity for ethical economic entities that internalise social and environmental costs. This could be achieved through copyfair licences, which allow full sharing of the knowledge but ask for reciprocity in exchange for commercialisation right.

Bauwens think that Copyfair licences are one of the elements that will allow to bridge the gap between the Commons approach and the cooperative movement, by renewing the latter in the form of “Open Cooperativism”.

The problem is that proposals are on the table for several years now, but they are slow to produce concrete results. Since many prototypes have been designed, none of these new licences have been, so far, adopted on a significant scale and it is difficult even to quote concrete examples of projects that would implement such principles.

I must confess that this “deadlock” could led me to think that a “design error” had been made and I expressed serious doubts about reciprocal licences (doubts that, to tell the truth, have not yet completely left me…). However, the reason for this delay is also the great difficulty of defining legally the concept of “reciprocity” which can have several different meanings, not always compatible with each other.

Things were there until I crossed paths, last year, with the association La Coop des Communs, which goal is to “create alliances between the Commons and the Social and Solidarity Economy”. It brings together researchers, SSE actors and activists from the commons, promoting an interesting mixing between these different cultures.

But, La Coop des Communs itself has been quickly confronted with the choice of a licence for its own productions. It appeared that this could be an excellent ground for experimentation to try to implement legally the idea of “reciprocity for the Commons” by establishing a bridge with SSE. These reflections led to a proposal – in which I participated – called Coopyright (a pun on the idea of “cooperative copyright”).

A presentation is on La Coop des Communs website, but I will take a moment to explain the specificities of this proposal and what it is likely to generate.

A synthesis to overcome previous blockages

Coopyright draws heavily on previous proposals (Everything Is a Remix !), trying to overcome their respective weaknesses

The main source of inspiration remains Dmytri Kleiner’s Peer Production Licence, which was devised from the Creative Commons CC-BY-NC-SA licence. His idea was to “specify” the NC option (Not for commercial use), stating that only entities with a cooperative form can use the resource.

More precisely, Peer Production Licence formulates its “reciprocity clause” as follows:

c. You may exercise your rights for commercial purposes only if :

i. You are a company or a cooperative owned by workers (worker owned)

ii. All financial gains, surpluses and profits generated by the company or cooperative are redistributed to workers.

d. Any use is prohibited by this licence for a company whose ownership and governance is private and whose purpose is to generate profit from the work of salaried employees.

We are therefore in an “organic” vision of reciprocity. The aim is to be able to distinguish between commercial entities of different nature, leaving a free use to “cooperatives” while keeping the possibility to submit to authorization and royalties classical “capitalist” companies. The problem is that this clause is drafted in a very restrictive way and, as it stands, only a small number of cooperatives can meet these criteria.

This is well explained by the lawyer Carine Bernault in an article about reciprocal licences :

The organic criterion adopted (“a company owned by its employees or a cooperative”) significantly reduces the possibilities of exploitation for commercial purposes. Moreover, the licence doesn’t define the notion of cooperative. However, if we look at the French cooperative production companies or SCOPs as an example, they are particularly characterised by an allocation of “operating surpluses” which must benefit, at least 25%, to all employees. Therefore, there is no guarantee that a SCOP fulfils the conditions, laid down in the licence, to engage in a commercial exploitation of the work.

For those reasons, the Peer Production Licence is, in my opinion, more a “proof of concept” than a real usable tool, because if the general idea of an “organic” criterion is interesting, the scope of application of the licence is too narrow. It doesn’t even apply to all cooperatives and forget the multitude of other institutional forms that SSE can take (associations, mutual funds, ESUS, etc.).

The second source of inspiration is Commons Reciprocity Licence.

In this proposal, the idea is to move away from an “organic” conception of reciprocity to promote reciprocity “in action”. In this vision, regardless of the status of the actors, the aim is to allow the free and unrestricted use of the Commons for those who contribute in return to the Commons. It would produce a more flexible and less discriminating result, since any company can have access to the resource, as long as it participates in the maintenance of Commons. But, this type of proposal also has weaknesses (and probably even more serious than those of the Peer Production Licence): how say exactly what is a Common? And what constitutes a “contribution to the Commons”? Should these contributions be quantified and evaluated and if so, how? In their proposal, Miguel Said Viera and Primavera de Filippi suggest using BlockChain for resolving these difficulties, but personally, I am suspicious of this convenient Deus Ex Machina that constitutes the BlockChain currently. In this view the link between reciprocity licensing and SSE is removed, even if it has the merit of introducing the interesting concept of “reciprocity in action”.

A third source of inspiration has been the FairShares project supported by the association of the same name, developing a vision of reciprocity that could be called “institutional”. In their proposal, there is no need to invent a new licence, as their system works as a “switch” between two Creative Commons licences. The resources produced are available under licence CC-BY-SA (therefore with possibility of commercial use) for the members of the association who participate in its activity. For “outside” persons and entities, resources are licensed under CC-BY-NC-ND and commercial use is subject to royalties. The interesting point, here, is first of all the economy of means and the possibility to link up to Creative Commons, which are the best-known licences in the World. There is also a dimension of “internal reciprocity” implemented within the same productive community. But once again we lose the link with ESS, which was the strength of the Peer Production Licence.

There are interesting aspects in all of these proposals, but none seemed really satisfactory. Thus, to elaborate the Coopyright, the idea has been to integrate the different aspects of reciprocity found in all those licences, each one presenting an interest: organic reciprocity / reciprocity in act / institutional reciprocity / internal-external reciprocity.

Organizing internal reciprocity around two Creative Commons licences

The first need for La Coop des Communs was to determine the status of its own productions, knowing that the association is organized in working groups dedicated to given themes. In a first way, to give effect to the idea of reciprocity, it was decided that participants in the working groups could benefit from the productions of these groups under CC-BY-SA licence (thus, with the possibility of modification and commercial use and a share alike obligation), while these same productions would be opened to third parties under CC-BY-NC-ND licence.

This solution is based on the idea of the FairShares project, building on the proven Creative Commons licences, to avoid increasing the “proliferation of licences”. Personally, I have further doubts about the possibility for a new licence to break into a landscape already saturated with proposals, in which certain tools, such as Creative Commons, have become “standards”. It’s better to use existing licences to build a “reciprocity system” than to start from scratch.

Otherwise, this vision enhances the link between “reciprocity in action” and “institutional reciprocity” and, I think, it’s the only sure way to proceed. It’s too difficult to define abstractly what is a “contribution to the Commons”, because Commons themselves are too different from one another. Only individually, each Common can appreciate what could be a significant contribution to its functioning. As for La Coop des Communs, a person, who wants to strongly benefit from resources produced within the association, has to contribute to its operation by participating in one of its working groups. Maybe other Commons would have another way of defining “reciprocity in action”, but it seems to me that we could never escape an “institutional” definition of the contribution, for each Common.

Bridging the gap with SSE through “limited profit” criterion

By default, La Coop des Communs’ resources are made available under CC-BY-NC-ND licence, but it was decided that outside entities will be exempt from prior authorisation and royalties if they have non-profit or limited-profit activity.

The concept of limited profit is part of the SSE’s rich legal legacy, and, as a criterion, has several interests. It already allows to overcome some of the limits of the NC (non-commercial use) criterion of the Creative Commons. The latter, on which there is endless debate in the Open Source Software communities, is often accused of being too vague. But in reality, it’s not: it is rather extremely broad, since it is triggered when a resource leads to monetary compensation or the search for a “commercial advantage”. Therefore, it’s only a criterion of “commerciality”, excluding the purpose of the use and its context, which means that administrations or associations may be subject to it.

From this point of view, the advantage of the non-profit or limited-profit criterion is to reintroduce an “organic” logic into the assessment of the use. Indeed, legally, these are entities that will be recognized as for profit or limited profit. However, the sphere of limited-profit also overlaps with SSE: it applies, for example, to associations working in the Social economy or companies such as SCOP, SCIC and ESUS companies.

In addition, entities know with a good level of confidence if, whether or not, they are in the limited-profit sphere. Indeed, originally used by the tax authorities, this criterion enable to grant tax deductions and the associations know whether they are in limited profit compared to the tax system applicable to them. It’s even easier for entities such as SCOPs, SCICs and ESUS companies, because they are intrinsically considered to be in the sphere of limited-profit, because of their operating principles (this is particularly clear in the ESS definition adopted in the Hamon law). And we can add that this criterion also has an international dimension, because although the definition of limited-profit may vary from country to country, it can be found in most legislation. The result is therefore comparable to copyright in Creative Commons licences: certain “pivot” concepts on which licences are built (originality, reproduction, representation, moral rights, collective management, etc.) may vary from country to country, but this simply affects the interpretation of licences and not their validity
The use of non-profit or limited-profit criterion seems to me very interesting to test, because it is perhaps a way to overcome the excessive rigidity showed by the Peer Production Licence. Perhaps it could be a way to make a legal link between Communes and SSE, which will enable “Open Cooperativism” to take shape.

Still some limitations, but a potential to explore

Coopyright may not be a perfect proposal, but in my view, it has the potential to reopen the debate on reciprocal licences on a better basis than it has been engaged to date. And, in my opinion, it is urgent to resume this debate. More and more actors of the SSE and the Commons are meeting on the major question of “reinforced reciprocity”, but, for now, they don’t have effective legal tools to implement it.
Coopyright can probably contribute to this process and will be currently tested by La Coop des Communs, especially within its project “Plateformes en Communs” (a set of cooperative platforms which recognize themselves in the notion of Commons and includes a working group on legal issues which I am in charge of leading). Please, also note that the text of the Coopyright proposal has been posted on GitLab for comments.

For now, the main limit of Coopyright will probably lie in the field of objects where it could be applied. Built on a combination of Creative Commons licences, it is not suitable, for example, for software because Creative Commons licences were designed for intellectual works, such as music, movies, text, photos, etc. and the Creative Commons Foundation itself recommends not to use them for software. Moreover, it should not be difficult to adapt dedicated software licences to implement the same principles, but this work remains to be done. Otherwise, Creative Commons licences also have limitations when applied to hardware objects (I already mentioned this on this blog) and Coopyright itself does not allow exceeding this limit.

For now, another restriction is that Coopyright has been developed to meet the specific needs of Coop des Communs and this directly reflects on how “internal reciprocity” is expressed in the text (extended rights in return for participation in its working groups). But it would be quite simple, for entities that would like to use this tool, to modify the basic text to express otherwise what they consider to be a “significant contribution to their activity”, opening the benefit to more re-use rights than the default license. Coopyright text itself is under CC-BY-SA licence and, therefore, everyone could adapt it, according to its needs.

Finally, I think we could add a layer so that “reciprocity in action” could be recognised within a network of entities that have the same values. For now, this “reciprocity in act” is assessed in relation to the contribution to a Common (in this case, La Coop des Communs). Imagine a group of entities decide to use Coopyright for their resources: they could then want to “form a coalition” and, in a spirit of solidarity, consider that the contribution to one of the members of the network would open user rights on the resources of the other members. This would lead to the creation of a “common pot” of resources, with a “networked” appreciation of what “reciprocity in action” would be, on the basis of cross-institutional assessments.

In short, there are probably many things to imagine from these first ideas and feel free to share yours under this post or go do it on GitLab.

PS: one last thing, which is not completely insignificant. A license needs a logo to get visibility. If someone is able to imagine a logo that would express Coopyright’s values and operating principles in a graphic form, do not hesitate to leave a comment!

Photo by Jonathan Lidbeck

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