More considerations on art. 68 CAD.
There is much talk lately about the reform of the Italian Digital Administration Code.
Undoubtedly, Minister Brunetta has decided to give a strong push to PA informatisation, a topic on which Italy is lagging compared to other countries both in the European bloc and, more generally, the most industrialised ones.
A new PA based on advanced e-government services is not a goal, but a necessity.
If on this point there can only be consensus, on the method to acquire the necessary IT systems and applications the debate is open.
As always, the interpreter must lose themselves in the regulatory jungle…
At first glance on the table lie various regulatory texts: Public Contracts Code, Digital Administration Code (CAD), Administrative Procedure Law, D.Lgs 39/1993 and last but not least, the Italian Copyright Law (LDA).
At second glance, the impression is that despite the jungle of rules and the consequent sense of panic, in our legal system, for the administration, equipping itself with beverage dispensers or with IT applications seems to be the same thing:
evaluation of possible solutions, decision to contract, publication of the tender notice in the forms established by the Contracts Code, qualification of candidates, awarding and stipulation.
At third glance, the problems arise.
Software is not regulated by the discipline provided for other goods; copyright in fact poses many problems to the application of the scheme proposed above.
In particular, the CAD requires the administration that, when assessing needs, a technical-economic evaluation be put in place in order to choose whether to acquire software under use licence — or open source software (and one should ask why the legislator did not also specify here “under licence”…), or to commission ad hoc software, to reuse software already owned by other administrations, or a combination of the solutions above.
And so we face calls that require ad hoc software to be made for the public administration using open source software whose rights are transferred to the contracting public administration.
So, legally, we have situations in which software that could be exclusively released under licence to third parties — perhaps modified to adapt it to the IT context of the requesting PA, and perhaps with a licence already indicated by the original author (the frequent case of copyleft to which the very widespread GPL has accustomed us) — is requested for transfer, or worse, ope legis, the copyright should arise as originally in the head of the requesting PA, with a clear violation of the prescriptions contained in the LDA.
At fourth glance, there is nothing left but to note how the problem was born in the technical-economic evaluation prescribed by art. 68 CAD.
There the PA is required to make an evaluation that has nothing technical or economic about it.
The administration under art. 68 CAD must choose what arrangement of rights the application it requests will have; therefore the evaluation is strictly legal. Constitutional Court ruling 122/2010 on this topic certainly hit the mark.
What is the difference from a technical and economic viewpoint if the PA chooses a proprietary solution rather than one released as open source?
Some will say that open source software is released under free licence, but it is also true that proprietary solutions could also be released for free, just as it is true that open source software is generally — but not necessarily — released for free: the GPL itself expresses itself more than clearly on the topic.
And from a technical viewpoint, how is it possible to evaluate which application is better on the basis of the negotiation agreement (licence) governing them?
Wouldn’t it be better to provide for a rule that refers to the indices to be considered in such cases? Or that, at least, refers the competence of identification to bodies created ad hoc (the old CNIPA already drafted a protocol on the matter which remains a dead letter).
It is true, the CAD reform is necessary, otherwise every time we want a coffee and the coin gets eaten, we will continue to look for the CTRL, ALT and DEL keys on the machine in the corridor…