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Now some open source actions can truly be regarded as public welfare undertakings recognized by law in China.
He Guoke, a member of the Expert Advisory Committee of the Social Organization Administration of the Ministry of Civil Affairs, began to participate in the construction of China's first technology-related foundation, the Open Atom Open Source Foundation, a few months ago. In a recent public sharing, he made a relevant introduction from the perspective of a legal person in the field of charity.
He Guoke believes that the establishment of the Open Atom Open Source Foundation is also of great significance to my country's public welfare undertakings. Prior to the establishment of Kaiyuan Foundation, most of my country's foundations carried out work related to “poverty relief” and were in the era of public welfare 1.0. They mainly helped children in mountainous areas, disadvantaged groups, and left-behind children, and helped women defend their rights. But in fact, the positioning of the foundation by the national law is far more than "alleviating the poor", but also includes promoting the development of education, science , culture, health, and sports.
"So the establishment of a newer and more open foundation is very valuable to promote China's philanthropy." He Guoke believes that in the field of public welfare, the greatest value is reflected in the change of concept. The objective of the Open Atom Open Source Foundation is to promote the development of related public welfare undertakings in the scientific field . As a new case, its establishment is a very valuable thing.
As for the open source field, this also means that open source projects can have ways to develop as public welfare undertakings recognized by law.
Recognize the Foundation
When the words "open source" and "public welfare" are linked together and implemented through the entity of "foundation", developers and companies may raise some general questions.
If you decide to treat open source projects as a contribution to the whole society, can all costs paid by enterprises and individuals in the development process be offset or rewarded accordingly? What role does the foundation play in this? How to ensure that the value of open source projects can be contributed to the whole society through the foundation? And so on. There may be many problems in actual development.
These issues are covered in He Guoke's sharing. Recently, at the "You Have Me Open Source Festival", He Guoke shared the theme of "Analysis on the Application of Laws for Donation of Open Source Projects-Legal Advantages of Fund Operation of Open Source Projects".
He Guoke pointed out that before discussing issues such as operations, donations, etc., you can first re-understand the foundation and understand the unique capabilities of the foundation that is different from the company in the entire open source project.
Re-recognizing the foundation can be viewed from two levels. The first level includes two attributes: legal attributes and property attributes.
In terms of legal attributes , there are provisions in the 2017 General Civil Law and the Civil Code of May this year. Prior to this, the foundation did not actually have a clear legal definition.
Civil Code of the People's Republic of China
Article 87: A legal person that is established for public welfare or other non-profit purposes and does not distribute profits to investors, founders or members is a non-profit legal person. Non-profit legal persons include public institutions, foundations , social organizations, and social service organizations.
He Guoke marked a word: do not distribute the profits obtained, "The foundation is a platform and management party, the purpose is not to make money, but it can make money."
The prerequisite for profit distribution is profit. A foundation can make a profit, and its sources include donations, investments, and value preservation and appreciation. However, all the profits made by the foundation must be used for the construction of the foundation platform, and not allocated to the promoters, employees, and board members behind the foundation. The bottom line is not to distribute, and use this bottom line to protect its non-profitability.
"This is our 2020, and the legal nature of the foundation has a very clear qualitative, that is, its non-profit nature ." He Guoke said, "If the open source platform belongs to an individual company, then all developers on the platform are Work for a company. If a foundation is a public and non-profit organization , then it is not a private product, and this is its legal nature."
In terms of property attributes , the foundation has sites, funds, personnel, and income. Then, who exactly belong to all these properties and resources?
The answer is social public property.
Public Welfare Donation Law of the People's Republic of China
Article 7 The donated property and its value-added of public welfare social organizations are social public property, which is protected by national laws, and no unit or individual may embezzle, misappropriate or damage it.
He Guoke explained that the properties of the foundation have public attributes. The foundation's resources, internal governance, and basic framework are all derived from social public property. Take foundation directors as an example. The directors may be assigned to the foundation by a certain number of companies. However, legally speaking, the directors can only represent the public. Even if they are appointed by the company, the directors will not be the spokesperson of the company, but the representatives who manage the foundation on behalf of the public. After that, the internal governance of the board of directors, such as re-election, dismissal, etc., is the board of directors making decisions to protect the social public property attributes.
The second level of understanding the foundation is to look at it in the category of "social organization".
The central government's determination of the role of social organizations
—— Opinions of the Central Office and the State Office on August 21, 2016 on reforming the management system of social organizations and promoting the healthy and orderly development of social organizations
"Social organizations have played an active role in promoting economic development, prospering social undertakings, innovating social governance, and expanding foreign exchanges." "Guiding social organizations to conduct foreign exchanges in an orderly manner, participating in non-governmental international organizations, and participating in the formulation of international standards and rules"
"This means that since the Open Source Foundation has a global perspective, it must be ambitious." He Guoke believes that when China's NGOs are mentioned internationally, the Open Atom Open Source Foundation is thought of. Then this is truly mature and very important. Sign. The attributes of the foundation also provide the possibility for the realization of the entire goal.
First, there is a policy basis. When the foundation operates open source products, compared with other commercial entities, it has non-government, public attributes, and charity attributes, and can better do the work of co-construction, sharing and co-creation.
Second, due to the non-profit and public nature of the foundation, it can enjoy special preferential policies. For example, the income of the foundation can be tax-free, and the foundation can also enjoy some tax concessions such as land, finance, and finance.
Third, in order to support the development of public welfare undertakings, the law also grants enterprises and people that support donations to public welfare undertakings a preferential corporate tax deduction. For example, if a company donates an open source project to a foundation, it can enjoy a 12% tax deduction of annual profits , and individual donations can enjoy a 30% personal tax deduction.
Fourth, due to the non-profit requirements of the foundation, there are particularly high democratic requirements in internal governance, which can improve the ability of democratic discussion. For example, although the directors of a foundation are appointed by different companies, and although different companies have different investment sizes, the directors have the same deliberation ability, and there will be no similar "same share but different rights" situation like company deliberation.
Regarding the understanding of the foundation, He Guoke also mentioned that none of the laws and policies prohibit the development and profitability of open source projects. All restrictions are imposed on the foundation's platform itself, and will not restrict participating companies and individuals.
Discussion on donation of open source projects
He Guoke revealed that during his participation in the foundation affairs this year, many people asked questions, if the code is donated to the foundation, how to open source? How to calculate the value of donation?
These problems arise because the current public welfare laws and policies basically solve monetary and in-kind donations, and solve a series of problems such as pricing, invoicing, income, and tax deduction. How to deal with donations from "open source projects" in practice And the solution is to be discussed.
First of all, there have been some new explorations and thoughts in terms of legal policies. In 2016, intellectual property rights were added to the scope of donated property in the Charity Law.
Charity Law of the People's Republic of China
Article 36 The property donated by the donor shall be the legal property that he has the right to dispose of. Donated property includes tangible and intangible properties such as currency, physical objects, houses, securities, equity, and intellectual property rights.
"Since intellectual property rights have been added to the Charity Law, there is room for exploration on the issue of donations to open source projects." He Guoke said, let's look at Guangdong during the epidemic this year and also mentioned rich forms of charitable donations:
Several Measures to Promote the High-quality Development of Charity in Guangdong Province
(7) Rich donation forms
Promote the expansion of charitable donations from donations of money and materials to donations of technology, skills, equity, securities, intellectual property, services, insurance, etc. Develop Internet charity, and innovate new fundraising methods such as online crowdfunding, sports crowdfunding, and mobile phone donations.
Although there is a certain legal and policy basis, the specific questions have not yet been answered. He Guoke summarized three questions and gave his own views:
- How are open source project donations legally priced?
- How does the foundation determine expenditure after accepting donations from "open source projects"?
- The balance between legal lagging and public welfare innovation development
First of all, with regard to donations, He Guoke believes that donations to open source projects should and can be valued. The question is how to find a fair way? In the past, the public donated a hundred dollars and a mobile phone, the value is very easy to judge, but now if you want to donate a line of code, donate a data, how to determine the value?
In addition, the price of donated projects will also affect the internal supervision of the foundation. The internal supervision of the foundation includes an annual public welfare expenditure of 8% of the profit. If the foundation accepts a large number of donations from open source projects every year, what is the value of the project? What kind of behavior means the foundation has used this value? This is a legal problem. Regarding the solution of the problem, He Guoke said that it is necessary for the industry to discuss appropriate policies and then submit them to the competent authorities. In the end, it is possible to achieve appropriate donation pricing rules.
Regarding the second question, He Guoke believes that as long as the foundation accepts the donation and makes it open source, it will be spent on the supply of the donation.
Regarding the third question, the previous policy was centered on the development of public welfare undertakings of "poverty alleviation". When promoting the development of the scientific field, there was a lack of corresponding legal regulations, but for the Open Atom Open Source Foundation, there are paths and channels. Find a suitable development path.
Finally, He Guoke said: “As long as the foundation discusses how to price and how to spend, and gives professional opinions and reasons, it can set standards and rules for the industry. And I think this is what the foundation should do.”