Chapter Agreement Revision/Response

This is a draft response from WMUK to questions asked by the Chapters Agreement Committee.

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1. What are your priorities in your relationship with the Foundation?

• Trademark agreement (and in general, association with Wikimedia/Wikipedia)
• Joint fundraising

2. Do you think this new draft agreement is overall a positive or a negative development for your chapter, the chapters movement and the broader Wikimedia community

• Positive: more thorough than the previous agreement
• Negative: There are a number of issues that need to be resolved, including some that are legally problematic.

3. What are your Board's views on:

3.1 the increased control given to the Foundation over chapters as a result of clauses 4.5, 1.4 and 3.2

4.5 Chapter shall provide Foundation with a copy of its bylaws and incorporation documents, along with a translation into English if not in English in the original. Chapter shall conduct its activities in accordance with its bylaws, and shall comply with relevant requirements set forth in Foundation's bylaws and all chapter-related policies, procedures, handbooks, manuals, or other written guidance that may be promulgated by Foundation from time to time, including but not limited to those Foundation policies posted at http://wikimediafoundation.org and http://meta.wikimedia.org. Chapter shall promptly advise Foundation of any change in Chapter's bylaws.

Some of this is unnecessary, e.g. "Chapter shall conduct its activities in accordance with its bylaws" is a legal requirement, not something that relates to an agreement between the WMF and the Chapter. More importantly, "shall comply with relevant requirements set forth in Foundation's bylaws and all chapter-related policies, procedures, handbooks, manuals, or other written guidance that may be promulgated by Foundation from time to time, including but not limited to those Foundation policies posted at http://wikimediafoundation.org and http://meta.wikimedia.org." is not logical nor possible. The legal agreement should be stated in full in the agreement, not scattered elsewhere. The concept is too broad to be legally agreed to whilst remaining a separate entity from the Foundation.

1.4.Renewal. This Agreement may be renewed for successive one-year terms. If Chapter wishes to renew this Agreement, Chapter must deliver to Foundation a written request to renew no later than ninety (90) days before the expiration of the current term. This Agreement may be renewed only if the License Agreement is renewed concurrently, and Chapter is in compliance with all terms and conditions contained in this Agreement and the License Agreement at the time the request to renew is delivered through the time of commencement of the renewal term. Foundation shall notify Chapter, no later than thirty (30) days before the expiration of the current term, whether or not the Agreement shall be renewed, it being understood that Foundation may make that decision in its sole discretion. If this Agreement is not renewed, it shall terminate at the end of the current term. Failure by Chapter to deliver a timely notice of renewal shall be treated as a final decision not to renew.

This change from auto-renewing to requiring renewal represents a statement of bad faith by the Foundation; it makes it too easy to dissolve the relationship and lose a chapter, e.g. by the breakdown of communications between a chapter and the WMF. The current agreement requires 90 days notice from either party to not automatically renew the agreement, and requires mediation if there is a dispute; that approach is far superior to the proposed one, and also requires far less bureaucracy.

3.2.Programs and Activities. Chapter shall be free to plan, develop, carry out, and publicize its activities as it sees fit, subject to the general principle that Chapter's authorization to identify itself as a Foundation chapter, and the scope of its rights to hold itself out as a Foundation chapter, is based on and limited to its carrying out programs and activities that further the purposes and objectives of the Wikimedia movement and that are of the highest quality with respect to content, materials, logistical preparation, and otherwise. Chapter acknowledges such requirements and limitations and, to that end, shall conduct itself and carry out activities in accordance with them. Such activities may include, but are not limited to: (etc.)

What the chapter can do is set down by the Objects, not by agreements; this agreement should not (and does not appear to) restrict those activities. There is an issue with "highest quality": the work will be done on the whole by volunteers, on a best-efforts basis, so the highest possible quality may not be possible (and may not be desirable, where highest quality requires additional funds over something that is sufficient).

3.2 whether the chapter agreement should be separated from a trademark agreement

As the two agreements are so interlinked, both in terms of what they aim at achieving and legally (specifically: 9.1 of the trademark agreement), it makes sense to have them in the same agreement. Aside from generating extra paperwork, separating them has little benefit.

3.3 whether the obligations in the agreement should be symmetrical

Yes, as much as possible (e.g. it is obviously not possible with regards usage of trademarks)

At present, the following clauses are obviously not symmetrical: 4.1-4.4, 6.3, 8.3-8.6, 9.2

3.4 the provisions relating to the use of trademarks

• The same issue with renewal is present in the trademark agreement; this is puzzling given 9.1.

• 9.6: "Chapter shall return to Foundation any and all property belonging to or associated with Foundation." - unclear whether this includes any merchandise bearing the trademarks

• 10.3: Tango says "very arbitrary and weird... I oppose it being there, but if it is going to be, it should be symmetrical (most of the license agreement doesn't need to be symmetrical, since a license isn't a symmetrical agreement)"

• It is still unclear which trademarks the trademark agreement will relate to.

3.5 any other comments or concerns you have with this agreement

1.2 "Foundation shall not grant any additional chapter affiliations within the Region without consultation with the Chapter." The existing agreement requires the "consent" of the Chapter, not merely the consultation; requiring consent would be the preferred phrasing.

2.1 does not make sense talking about trademark agreements outside of the trademark agreement...

4.6: "Upon the written request of Foundation and at Chapter's expense" - It is standard for the person making such a request to pay, and due to the likely imbalance in resources/budget between the Foundation and Chapters (especially new ones) that would make most sense.

The rationale behind 8.7 is unclear; why should it be possible to immediately cancel an agreement when e.g. a fundraising agreement or a short term permission to use trademarks ends?

There should be a mediation mechanism explicitly in place for if either side terminates the agreement without the consent of the other side (e.g. via section 8 of the agreement)

"Notices given in the manner provided by this Section 10.8 shall be considered effective two (2) days after deposit in the mail, or the next business day if delivered by courier, fax, or email" - 2 days is generally insufficient for international mail, especially if those two days are non-business days; that number needs to be revised upwards. Additionally, "next business day" should explicitly relate to either side to allow for differences in official holidays.

8.9 (and 9.7 of the trademark agreement): it is currently unclear to us whether these are legally allowable.

There are also linguistic issues with the agreement, e.g. "As contemplated by" (the document can think on its own?), and "incidental to" (an accompanying but not a major part of something), "Foundation" and "Chapter" need prefixing with "the", and technical issues, e.g. "Section Error: Reference source not found" within 10.3 of the trademark agreement.

4. If negotiations were not able to resolve your concerns, would you be prepared to refuse to sign the agreement if a significant number of other chapters also refused to sign.

This depends on the concerns that remain. If the concerns are legally problematic to WMUK, then we would be unable to sign the agreement. The termination of the prior agreement will have to be done via a Special Resolution at an AGM or EGM; as such, we will only be able to sign the new agreement with the approval of our members.