The purpose of providing the next generation of standardized contributor agreements is to reduce friction and transaction costs for free and open source and open content projects: Each time developers and authors decide to collaborate and contribute to a specific project, all parties involved, be it contributors and their employees or the projects and companies, experience friction and transaction costs in reviewing and negotiating legal terms to define mutual relationships. Providing free and standardized template agreements that can be used to manage and move rights between those parties can serve as a starting point to simplify legal barriers for collaborative projects. However, in addition, it is also critical to think about the underlying infrastructure to manage and move rights between different parties and across jurisdictions.
What kind of structural system can help to reduce friction and move rights between developers, projects and end-users? Would it be desirable to set up a network of intermediaries, which can mediate and move rights between developers and other authors, projects and companies, and potential end-users? What would be an appropriate high-value-add role for such intermediaries to respond to today’s distribution models?
In order to address these questions, we will investigate possibilities for a network of intermediaries (see first draft of thoughts available at ConceptPaper_NetworkV9_Abstract), which allows trustworthy third parties to mediate rights between developers and projects and help reduce friction in reviewing and negotiating terms of copyright agreements. It is envisaged that such a framework would consist of a network of “agencies,” each chosen and trusted by the developers they serve, with formal relationships between the different agencies and also standardized agreements between the respective developers and projects to make rights move smoothly. In this manner, developers would be relieved of friction by shifting the burden of complex legal negotiations to organizations that are built for that purpose, and projects would be relieved of transaction costs because they only need to deal with a limited number of agencies able to act as conduits and move rights between jurisdictions.
One of the key questions for such a third party model is whether the intermediaries can manage contributors’ rights through a fiduciary relationship. If the intermediaries act as agents rather than licensees, much of the friction and complexity that can be found in already existing third party models will be avoided. Such a fiduciary system would not only ease the general scheme of rights management, it would also accommodate the tendency towards access rather than ownership when it comes to the development of digital business models. The emergence of the so-called “sharing” economy has successfully demonstrated that access to goods and services plays an increasingly important role and can eventually replace the traditional system of ownership. In the same way as technology has allowed these practices to become visible and almost mainstream through car-sharing or online marketplaces for hiring services, new platforms will allow to get access to rights, just when needed instead of having to buy and hold such rights.
With this in mind, further research on the drafting and usage of the “Fiduciary License Agreement” as published by the Free Software Foundation Europe is necessary to understand advantages and potential pitfalls of such a model. Another ally is the Free Culture Trust, which is about to develop a new model of intermediaries to manage rights for creative content (http://freeculturetrust.org/).