Is having "open" IP a necessary constraint of a FairShares Association?

These customer concerns illustrate to me that the salesperson has failed to effectively communicate both the benefits of the service being offered and the benefits to the customer of the open source model.

If this is merely a problem of sales/marketing, then no one in the U.S. knows how to do it correctly in the EHR market-space and there is a huge opportunity for someone with these talents. After 20 some odd years, Open Source EHR adoption has failed in the U.S. quite spectacularly, and in fact in the U.S. the main open source EHR used by the Vetrans Administration (and DOD) will soon be replaced with closed-source Cerner.

https://www.ncbi.nlm.nih.gov/pubmed/28235750

That said, I fully respect that the social goals of a Fair Share organizations require that the copyrights generated by owned by the employees (and not for example the consumers or the investors or others with a shared interest in its success). My opinion is different. I think that it is the users of the software/service who grow financially dependent upon its operation should collectively (and non-discriminatory) own the intellectual property so that they may ensure continued funding and participation. I think it's a different perspective (consumer protection vs labour protection) and that's perfectly fine.

To be productive, what I would like to know is how the bylaws regarding the intellectual commons are intended work in practice. They seem to contradict each other. Subclause (b) says that "any product or service offered [By The Company] will use the same Creative Commons license [As the Employee Provided to the Company]". Yet it says: "Company shall retain a non-exclusive right to continue using and adapting their IP in both non-commercial and commercial ventures." This is confusing to me. If the non-commercial use is chosen, how does that operate? Can the company use the work commercially? Or is it that there is a separate license (not mentioned) that the employee grants to the Company that permits its commercial use regardless of the creative commons license chosen.

In any case, it's still problematic since those who invest or are the first users when "building" a creative commons via FairShare and pay for intellectual property do so with it vested in the employees. Once the huge bootstrap cost is paid, a handful of the employees who own the copyrigths could decide to eshew the investment (and existing users) and take their work private (since they own copyright). Even if you form a "workers cooperative" doesn't make it ethical, since it is the users (and not the developers) of the work that are subject to the control. Business process software aren't replaceable works in the same way as a literary or artistic output might be. Hence, I don't think the very framework outlined here would be applicable to fields of endeavor where users adopt complex business software.

@christophersorensh - I think you would find this thread interesting. Clark has an interesting design issue regarding cooperatives in the US health context. He's looking to create a user cooperative to buy/own medical records software; to create a market amongst suppliers of changes to the software; possibly find a way to attract capital, but with diminishing or limited rights of ownership/dividend. I remember you tell us at the FairShares Association conference about the equity attributes you crafted for investor that gave diminishing returns / ownership rights over time. Do you want to explain these to Clark in case they are useful in his health coop context?

Colleagues - Clark has raised an interesting vulnerability in our model rules in a private email:

“Do you understand what I'm saying
about standing? Suppose Sarah & John left (with their
copyrights) and someone else started to use the BY-SA-NC
software commercially and not sharing. What can the
cooperative do about it? The answer: nothing.
Why? Because the cooperative isn't the copyright holder
and it therefore lack any manner to enforce the license.

After Zach purchases the copyrights from Sarah & John,
he would have the sole discretion to enforce the breach

of the CC license... if he even wanted to do so.”

I think I understand the point here – I cannot find anything in a UK setting that says someone other than the copyright holder can enforce the copyright, but it does say that copyright can be owned by more than one person, and by both individuals and businesses. It occurs to me that if Clause 53 were amended to state explicitly that copyright would be shared between the company/cooperative in the event of a member leaving, this would address the issue raised and protect the company/cooperative.

Do you agree? (If yes, I’ll amend Clause 53 in our rules generator, then generate a trial set of rules for an imaginary ‘Medical Researchers Cooperative’ for Clark to inspect.

I'm not a lawyer, and I have only limited familiarity with U.S. copyright law, so please view my assertions with suspect. It seems at first glance that having a member have "joint" copyright with the cooperative solves a few problems: (a) the cooperative could issue new licenses to take advantage of new business opportunities, such as a legal requirement that a governmental agency might require, (b) it permits the cooperative to enforce the licenses it issues, (c) it provides a requirement that an exiting member share any profits associated with the jointly copyrighted work should they be used commercially. It doesn't seem to stop the exiting member from licensing the work using something very liberal, like the MIT, potentially undermining commercialization efforts by the cooperative. Alas, I'm not a lawyer and this isn't legal advice.

@bronwen @iansnaith Any thoughts on this thread (in your capacity as scholars of law)?

The Creative Commons FAQ has a lot of information but doesn't answer this question directly.

I suspect, however, that it would depend on the harm suffered - if you could demonstrate that you were suffering damage as a result of the other party's breach of the license, then you would probably have standing. If you hadn't actually suffered any damage, then you probably need to rely on the license holder to enforce the terms of the license.

I could be wrong: in the event of misuse of a CC license, the license automatically terminates and the (mis)user no longer has any right to the material whatsoever! They may not get a new license by simply re-downloading the material, they need to obtain express permission from the author/license holder. It could be, therefore, that you could make a case that either your rights as a license holder are being infringed by this non-compliant use, or perhaps that it is in the public interest that they be ordered to cease whatever activity it is they are engaged in.

(Off the top of my head I can think of examples where the licensed distributor of, for example, Microsoft software would be able to sue an unlicensed distributor in their territory - neither party is Microsoft - this situation seems analogous.)

There are lawyers and affiliates in certain locations who could help investigate further if you're interested.

This is an interesting question, and while I'm not an intellectual property scholar, I think the key insight of legal approaches to IP is that there is scope for much more than a dichotomy between open and proprietary approaches. Property law, whether
real or intellectual, can tailor and customise many hybrid approaches. That said, the default provision does communicate an underlying policy or value choice, and for me the default to open or Creative Commons signals the basic commitment of the Fairshares
model to sharing the benefits of productive activity - in this case beyond the investor/worked/consumer/founder of the governance design of the model itself. It speaks to the broader public interest of adopting a Fairshares approach, and re-engages the history
of corporations as a fictional legal person given its charter ultimately by the state as a means to the end of a broader public interest.

That said, the question of return on capital and sweat equity obviously matters, and there have been extensive debates about how IP relates to this in the P2P Foundation blogosphere, with Michel Bauwens' idea of a commons reciprocity licence an interesting
one that allows a hybrid between returns, income streams and open sharing - one discussion of this can be found here:
http://peerproduction.net/issues/issue-4-value-and-currency/invited-comments/between-copyleft-and-copyfarleft-advance-reciprocity-for-the-commons/, and there are other more informal changes on the P2P Foundation website.

Bronwen Morgan• Professor • The University of New South Wales • UNSW Sydney NSW 2052, Australia • Phone: +61 (2) 9385 7727 • Fax: +61 (2) 9385 1175 • Web:
http://www.law.unsw.edu.au/profile/bronwen-morgan