[Fiware-ga] [Fiware-wpl] URGENT and CRITICAL vote by the FI-WARE General Assembly: SAP veto on amendment 4

[Heller, Markus]

Dear all,

We would like to add to Juanjo's remarks  the following in order to clarify some misunderstanding that may have arisen:

SAP's suggestion to delete the entire Section about Access Rights to Foreground and Background to FI PPP Partners does not contradict the 'spirit' of the FI PPP because the Access to Background is regulated in the Collaboration Agreement in the perfect differentiation for the specific needs of the technological FI PPP Platform Fi-Ware and the FI PPP Use Cases. The regulations in the Collaboration Agreement has finer regulations in order to fit the needs of the Use Cases and the special needs of Fi-Ware as Technology Platform. The regulations are as such:
For Complementary Background, which is Background from another FI PPP Project, the Access is subject to another Agreement and upon discretion of the Background IP owner. Exception to this general rule is Background included in the so-called Fi-Ware Generic Enabler. This Background is accessible for FI PPP Partners upon royalty-free terms.

Please see the exact wording of the Collaboration Agreement here:

4.2.3.4 Access Rights to Generic Enablers and Generic Enabler Specifications
Notwithstanding the Sections 4.2.3.1 to 4.2.3.3 above,

- Access Rights to Complementary Foreground and Complementary Background included in Generic Enabler Specifications for the execution of any Complementary Grant Agreement and for Use and
- Access Rights to Complementary Background included in Generic Enablers which is Needed for the execution of the Complementary Grant Agreement

are hereby requested in writing and are deemed granted on a royalty free basis to all Parties and by all Parties.

We believe that this  Section fits perfectly to the spirit of the FI PPP. Therefore, SAP believes, that we do not need any specific language in the DOW regarding the Access Rights.

In parallel to the doodle polling according to the change procedures outlined in the mail below, we would like to share what is SAP's opinion on this matter.

With best wishes,
Markus Heller

Dr. Markus Heller
Senior Researcher
SAP AG
Vincenz-Priessnitz-Str. 1
76131 Karlsruhe / Germany

T +49 6227 7-52673

Pflichtangaben/Mandatory Disclosure Statements: www.sap.com/corporate-en/impressum<http://www.sap.com/corporate-en/impressum>

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From: fiware-wpl-bounces at lists.fi-ware.eu [mailto:fiware-wpl-bounces at lists.fi-ware.eu] On Behalf Of Juanjo Hierro
Sent: Montag, 22. April 2013 20:59
To: fiware-ga at lists.fi-ware.eu
Cc: fiware-pcc at lists.fi-ware.eu; fiware-wpl at lists.fi-ware.eu; fiware-wpa at lists.fi-ware.eu
Subject: [Fiware-wpl] URGENT and CRITICAL vote by the FI-WARE General Assembly: SAP veto on amendment 4

Dear FI-WARE partners,

  I have to inform you that SAP has decided to issue a veto on the current amendment 4 currently under negotiation with the EC until a question on IPR management is solved.

  We committed to handle this issue raised during development of amendment 5 of the DoW which was going to be opened right after the current amendment is closed and we rather expect to finalize before end of May simply because there were elements there we know the EC consider of a rather high priority: incorporation of the new governance model and inclusion of additional beneficiaries from the 2nd Open Call and, more relevant for the EC, the 3rd Open Call.   However SAP didn't want to rely on this compromise based on experience of the time consumed in previous amendments and decided to go for this veto, exploiting their right to issue it.   I honestly believe we shouldn't spend too much time discussing whether this was a fair approach or not.

  This mail is then to cast your vote on the solution to handle the issue raised by SAP to be incorporated in amendment 4.   In this mail, I will elaborate on:

  1.  The issue itself
  2.  The alternative solutions proposed by SAP and Telefonica
  3.  The process we will follow to make a decision and communicate it to the EC

1. The issue itself

  The issue is derived from a contradiction that has been detected by SAP on different places of the Grant Agreement (the contract).

  On one hand, the B.3.2.4  section on IPR included in the FI-WARE DoW (formally referred as Annex I of the Grant Agreement) states the following:

[cid:part1.08040204.00010208 at tid.es]

  This paragraph was based on what we already stated in our proposal and was also requested by the EC.   It was also aligned with clauses related to access rights to FI-WARE GE specifications and implementations in the FI-PPP Collaboration Agreement.

  However, special clause 41 in article 7 of the Grant Agreement states the following which apparently contradicts what was said in section B.3.2.4 of the DoW:

[cid:image002.png at 01CE41B0.967B36F0]
  (for your knowlege, complementary beneficiaries refer to beneficiaries of other other projects different than FI-WARE in the FI-PPP).

  Besides this, there is article of the Grant Agreement that elaborates on what interpretation should prevail in case of conflicts between different parts of the Grant Agreement:
[cid:image003.png at 01CE41B0.967B36F0]
  That would mean that what was stated in special clause 41 in article 7 would take precedence over what was stated in section B.3.2.4 of the DoW.

  It seems like it would be worth fixing this contradictions in an amendment of the DoW.


2. The alternative solutions proposed by SAP and Telefonica

2.1 Solution proposed by SAP

  The solution proposed by SAP is simple: drop the conflicting paragraph on section B.3.2.4.   Consequently, users of FI-WARE in the context of the FI-PPP could be charged for the background that is integrated as part of a FI-WARE GE implementation or will be required for its execution.

2.2. Solution proposed by Telefonica

  Telefonica strongly believe that it has been stated multiple times, as basic principle of the program, that users of FI-WARE in the context of FI-PPP activities cannot be charged for any background or foreground that becomes part of a FI-WARE GE implementation.   It can also confirm that the European Commission has stated multiple times that this was a requirement for the program.   Therefore, it will never be accepted by the EC.

  Our proposal is also simple:

  *   Fix special clause 41 so that it reads as follows (changes marked in red):

Complementary beneficiaries enjoy the rights and bear the obligations of beneficiaries with
regard to Articles II.32, II.33 and II.34 of Annex II {Access Rights}. However, for
complementary beneficiaries, these rights and obligations are limited to foreground and background associated only to FI-WARE GE implementations developed in FI-WARE the project.   Therefore, they do not extend to background that is not part of FI-WARE GE implementations or required for them to run. Complementary beneficiaries are not members of the consortium for
the purpose of this grant agreement

  *   Clarify paragraph in section B.3.2.4 of the DoW for the avoidance of doubt:

Access Rights to Foreground and Background associated to FI-WARE GE implementations needed for the execution of the FI-PPP projects and users who  carry out experiments in the FI-WARE Open Innovation Lab as long as the FI-WARE project lasts, shall be
deemed granted on a Royalty-Free basis. Other than in exceptional circumstances and only for
Background specifically identified, no costs shall be charged for granting such Access Rights. The FI-WARE
beneficiaries will not charge any such costs to the project.



3. The process we will follow to make a decision and communicate it to the EC

  Given the fact that the two positions on the matter are irreconcilable, we should go for a voting.   In this respect, partners will be asked to:

  *   vote yes, no or abstain to each of the proposals
  *   clarify whether they would issue a veto to a proposal if it happens to be endorsed by the majority of the partners

  For this purpose, the following doodle will be used.

   http://www.doodle.com/8r4rt8wnur5a7wh7

  Those who wish to keep their vote visible in doodle please send your vote to me (or in response to recipients of this mail).   We will list their vote in the doodle as "partner X" (X being a number).

  Voting will close this Friday at 12:00.   Please don't forget to cast your vote.   We will circulate an spreadsheet with the gathered votes by email on Friday afternoon and will close the doodle.   Just to avoid any issue, we will give a period until Monday 12:00 to raise an issue if you believe that your vote was not properly recorded.

  Once we gather all the votes, we will apply voting accounting rules as stated in the FI-WARE Consortium Agreement, meaning that each Party shall have a number of votes equal to the percentage that its Project Share bears to the total of all the Project Shares of the Parties.  Then we will announce the results to the consortia.

  Finally, based on the results of the process described above:

  *   We will communicate to the EC the proposed changes in the Grant Agreement and require them to be part of amendment 4
  *   We will inform the EC about the partners (if any) who plan to veto amendment 4 because of the proposed changes


  If you have any questions regarding any of the points above, don't hesitate to ask.

  Best regards,



-- Juanjo Hierro



-------------

Product Development and Innovation (PDI) - Telefonica Digital

website: www.tid.es<http://www.tid.es>

email: jhierro at tid.es<mailto:jhierro at tid.es>

twitter: twitter.com/JuanjoHierro



FI-WARE (European Future Internet Core Platform) Coordinator

and Chief Architect



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