Fiduciary Programme

Fiduciary Licence Agreement (FLA)

Why would I need an FLA?

Development of Free Software can follow many patterns. In some cases the entirety of the development is handled by a sole programmer, or by a small group of people. However, the creation and maintenance of software is a complex process and more often than not encompasses many individuals. This also reflects in who owns the rights in software. In the latter case, rights in software are owned jointly by a large number of individuals.

To tackle this issue, some projects may require a full copyright assignment signed by all contributors. The problem with such assignments is often that they lack check and balances that would protect these contributors from any potential abuse of power from the new copyright holder.

The Fiduciary Licence Agreement (FLA) was created with that in mind – to concentrate all deciding power within one entity and prevent fragmentation of rights on the one hand, while preventing that single entity from abusing its power on the other.

The process in an FLA only serves for the transfer of economic rights. So-called moral rights (e.g. authors right to be identified as author) remain with the original author and are inalienable.

How does an FLA function?

An FLA is an agreement between two parties - one party is an individual who has contributed to a particular piece software and therefore is a co-author (Contributor). The other party is an entity - it might be natural person but also company or organisation - who will be the new holder of the rights (Trustee). This way the fragmentation of rights among many contributors can be prevented, as all the rights will be concentrated in one entity instead. Doing this ensures that copyright-relevant modifications (for example, re-licensing) can be done easier, without needing to pin down all contributors.

The Contributor does not lose all of their rights, just the exclusivity in them. While the Contributor transfers their exclusive rights to the entity responsible for managing, the Trustee reciprocally grants the Contributor a non-exclusive worldwide, royalty-free, perpetual and irrevocable licence to same extent as it was originally transferred from the Contributor.

What if the Trustee misuses the rights I gave to them, e.g. by re-licensing Free Software as a proprietary one?

An FLA offers a special clause against this kind of situation, in order to protect the Free Software project against potentially malicious intentions of the Trustee. According to this provision, if the Trustee acts against the principles of Free Software, all granted rights and licences return to their original owners. That means that the Trustee will be effectively prevented from continuing any activity which is contrary to the principles of Free Software.

Who can be a Trustee?

As was mentioned above, a Trustee can be basically anyone, whether a natural person, company or organisation. But before becoming a Trustee, it is always important to assess all the risks connected with becoming one. Being a Trustee is a responsibility that should not be underestimated.

How can I use an FLA for my own project?

The previous version of the FLA was used for the FSFE's Fiduciary Programme. Unfortunately, the FSFE is no longer accepting new projects under the Fiduciary Programme at the moment. However, you can use our customisable version of the updated FLA-2.0 in order to consolidate your copyright under your own administrative umbrella. It can also be adapted to assign the rights to any other third party.

If you want to use our updated FLA-2.0 for your own project, please follow these instructions here.

What has changed in FLA-2.0?

The FLA-2.0 was drafted in collaboration with ContributorAgreements.org in order to better reflect the necessities of Contributors, and Trustees as recipients of contributions. As a result of this collaboration, the FLA-2.0 now includes:

• compatibility with more jurisdictions;
• added patent licence for further protection against patent litigation;
• clearer wording;
• narrowing down the list of Free Software licences1;
• more practical licensing options directed towards third parties – including referencing to an external licensing policy.

All these changes were made in order to strengthen the positions of both developers and the managing entity for the better management of rights within one project.

You can learn more about the FLA-2.0 by emailing us.

Authors

The FLA-2.0 was written by Matija Šuklje and Catharina Maracke, based on the spirit of the original FLA and the ContributorAgreements.org templates, as well as in consultation with renowned international legal and technical experts. Special thanks should go to Aahit Gaba, Adriaan de Groot, Alessandro Rubini, Anthonia Ghalamkarizadeh, Axel Metzger, Carlo Piana, Florian Idelberger, Hugo Roy, Ingo Klöcker, Jonas Öberg, Jonathan Riddell, Lydia Pintscher, Malcolm Bain, Martin Husovec, Nicola Feltrin, Paul Brown, Pam Chestek, Polina Malaja, Vishesh Handa, as well as the FSFE Legal Network, KDE e.V., DataVerse, and Endocode.

Initial version of FLA was written by Dr. Axel Metzger and Georg Greve in consultation with renowned international legal and technical experts. Parties ivolved in the evolution of the FLA included RA Dr. Till Jaeger, Carsten Schulz, Prof. Eben Moglen, RA Thorsten Feldmann (LL.M.), Werner Koch, Alessandro Rubini, Reinhard Muller, Shane Coughlan and others.

Footnotes

1. Free Software licence as in identified by the Free Software Foundation and Open Source Initiative↩