Legal construct of supporter program

Submitted by serettig on Thu, 12/12/2019 - 07:46
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Hi,

I'm asking this on behalf of the organisation I work for (a subsidiary to the Ministry of Education of a German state). While our team might be interested in supporting H5P through the supporter program, the legal situation is not entirely clear to us. We might have to do a lot of explaining for a our legal department to get this through. Being a government organisation we are bound to European, German and state competition law and are very limited in the way we can use public funds freely. 

What legal form does a "membership" in the supporter program have? Is this a share in a private enterprise? A donation? In what way are the votes you receive legally binding? Is the "voting" legally a membership in a "supervisory board"? Is the H5P supporter program run by a private enterprise or a non-profit organisation? Is it run by Joubel AS? And if so, how are conflicts of interests between running a profit-oriented enterprise (h5p.com) and the open source funding resolved?

Sebastian

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falcon

Thu, 12/12/2019 - 10:17

Hi Sebastian,

Thank you for asking. The program is brand new and we're happy to receive feedback and revise the legal construct of the H5P Supporter program.

I understand your situation. A membership in the network involves a yearly donation to a private enterprise. The votes we receive are not legally binding in the sense that we may choose to not implement a top voted feature request for any reason (for instance if it isn't possible to make it cross browser compliant or accessible, or if we know someone is working on it already, or it conflicts with our plans, for instance if we already have funding for it).

Since the voting is not legally binding I don't think it can be interpreted as a membership in a "supervisory board".

The H5P Supporter program is run by Joubel AS. We will publish financial reports at least twice per year that will show how much funds are generated and how they have been spent. If there are feature requests for features that can be added to the open source version, but we plan to only have them on H5P.com we will refuse such feature requests, but this isn't very likely to happen as the H5P.com only features planned mostly require special server side technologies and set up that can't go into the open source plugins anyway.

Let me know what you think, and again, we're happy to change the legal construct completely to make it easier for potential members to accept. We will not create an H5P Foundation just yet, but we've always planned to do so and especially give it authority over the H5P file format to make it a true open standard. The H5P Supporter Network will hopefully be a solid first step towards this as the foundation will need both funding and representatives from a wide range of organization types, cultures and regions.

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serettig

Thu, 12/12/2019 - 16:02

Hi Falcon,

thank you for your quick and helpful answer! I'll bring up this topic in our next department meeting and see where this leads. It will be interesting to see what the lawyers will say about donating public money to a private enterprise, though. I'll come back to you when I've got more news (judging from the speed of government beauracracy, this will take some time :( ). In general, I could imagine that it might be easier to acquire public funding if there was a non-profit H5P Foundation. Most educational institutions in Europe are state-run and have to follow EU competition law. This is a huge chunk of potential organisations.

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otacke

Thu, 12/12/2019 - 22:37

And it's German bureaucracy ... This may take some extra time ;-)

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falcon

Fri, 12/13/2019 - 10:09

I understand. We're looking for advise as to how organizations who wants to support the project can easily do so. It can probably sail under many flags in terms of formalities.

  • Donation: It funds open source software used by hundreds of millions of people around the world, rich and poor. It is used by many charities to serve underprivileged kids.
  • Marketing: The logo is displayed on H5P.org, and we'll make them much more prominent going forward. H5P.org has 2.6 million visitors so far this year - not counting the "test drive" content which would add a figure.
  • Consultancy: Probably the most problematic since it is cost price and since you can't control what gets developed.
  • Membership / license fee: Probably also quite problematic unless we add some benefits to supporters like access to H5P.com APIs?

In terms of tender rules, in Norway organizations may do direct acquisitions if there is only one vendor. It is the case here, but perhaps the problem is what you are buying? Also, in Norway the silver and gold packages would be fairly easy I think as they are below the thresholds for full tenders and would typically be done as direct acquisitions. The platinum would be more problematic as it is above some thresholds that would require organizations to do more to justify a direct acquisition.

I'm not familiar with donations.