Article 69 of the Italian Codice dellāAmministrazione Digitale (Digital Administration Code, CAD) requires every public body that owns a program developed to its own specifications to grant it free of charge, in source form and with available documentation, to any public body that asks for it in order to adapt it. This is an obligation, not an option, and it sits at the end of a sixteen-year legislative chain. It is worth retracing, because the chain also shows where the obligation hollows out.
How we got here
The first piece is D.Lgs 39/1993 on the rationalisation of computing in public administration. It says nothing about reuse ā in 1993 the concept did not exist in Italian law ā but it sets a principle that everything else takes for granted: commissioned software belongs to the commissioning body (art. 2, para. 3), in line with art. 11 of the copyright statute (legge 633/1941). Without that title there is nothing to grant for reuse: if the supplier kept the rights for itself, the body would hold a mere licence to use.
The second piece is art. 25 of legge 340/2000, which gives public bodies the option to grant their applications to other administrations free of charge. Reuse appears here for the first time as a legal category, but it stays optional: those who wish to share do, those who donāt, donāt.
The third is the directive of the Minister for Innovation and Technologies of 19 December 2003 ā the so-called Stanca directive ā on developing and acquiring software in the public sector. Article 7 asks, Ā«in order to favour reuseĀ», that tender specifications provide, Ā«where possibleĀ», that bespoke programs be readily portable to other platforms. This is the first time a text turns reuse from an option into a binding instruction, however watered down by that Ā«where possibleĀ».
Arts. 67-70 of the CAD
D.Lgs 82/2005 (the CAD) gathers this experience into Chapter VI and orders it across four articles that work in sequence.
Article 67 sets out how applications are developed and acquired. Article 68 mandates a comparative assessment of solutions before purchase, and lists the options: bespoke development, reuse of already-built programs, acquisition of software for reuse, off-the-shelf purchase, free or open-source software. There is no hierarchy among these entries: reuse sits in the list on equal footing with the rest.
Article 69 is the core of the obligation:
Ā«Public administrations holding application programs realised on the specific instructions of the public commissioner are obliged to grant them in source form, complete with available documentation, for free use to other public administrations that request them and intend to adapt them to their own needs, save for reasoned grounds.Ā»
The same article closes the loop opened in 1993: it requires acquisition contracts to include clauses securing the right to dispose of the programs for reuse. The title set by D.Lgs 39/1993 thus becomes an operational instrument, no longer a bare statement of principle.
Article 70 charges CNIPA (the National Centre for ICT in Public Administration) with assessing and publicising, through a database, the applications suitable for reuse, and requires central bodies to check that reusability before acquiring comparable software, giving reasons for any non-adoption.
Ā«Save for reasoned groundsĀ» and the absence of a hierarchy
The art. 69 obligation has two valves that decide how effective it is in practice.
The first is the clause Ā«save for reasoned groundsĀ». A public body may refuse to grant a program for reuse if it states reasoned grounds. The statute does not enumerate them, and without enumeration the reasoning stays a matter of administrative discretion: it makes sense to read it narrowly ā a prevailing public interest, for instance security or confidentiality concerns ā but the text does not require that reading.
The second valve is structural and sits further upstream, in art. 68. Since reuse is one of the comparative-assessment options and enjoys no priority, a body acquiring software is not obliged to prefer it: it need only assess it (and, for central bodies, give reasons under art. 70 for not reusing an already-catalogued solution). The art. 69 obligation falls on whoever already owns a program and receives a request; on the purchaserās side there is no mirror obligation to choose reuse when a suitable solution exists.
It follows that the mechanism works only if the art. 70 database is populated and consulted. Without an up-to-date catalogue and without contract clauses that are actually inserted, the art. 69 obligation stays a power whose object few people know.
What changes for whoever drafts the tender
For anyone drafting a tender specification the practical consequence is clear: the clause securing the right to dispose of the program for reuse is not optional, art. 69, para. 2 prescribes it. It must be written so as to cover delivery of the source and the documentation, because that is what the body will in turn have to hand over on request. A supply that leaves the supplier in control of the code puts the administration in breach of an obligation that will only crystallise later, at the first request from another body.
On licensing, since 2009 there is a new and relevant instrument: the European Union Public Licence (EUPL) version 1.1, approved by the European Commission on 9 January 2009 and certified by the Open Source Initiative on 4 March 2009. It is a free licence with a copyleft clause, drafted in all official Union languages and carrying a compatibility clause that allows it to be combined with code released under the GPL and other listed licences. For a public body that must grant a source for reuse, a licence designed for European law and available in Italian reduces interpretive uncertainty compared with licences written and calibrated for other legal systems.
Limits
Article 69 binds the grant between public administrations; it does not create an obligation of open publication towards citizens and firms, and it does not require, upstream, a preference for reuse or open-source software at purchase. The direction of recent years ā from the 2000 option to the 2005 obligation ā suggests the legislator proceeds by successive grafts, but as things stand the priority of reuse over the other art. 68 options remains a de iure condendo possibility, not a feature of the text in force. As long as the choice between reusing and re-buying stays entirely discretionary, the art. 69 obligation measures the availability of software already built more than the efficiency of spending still to come.
https://www.parlamento.it/parlam/leggi/deleghe/05082dl.htm https://it.wikipedia.org/wiki/Codice_dellāamministrazione_digitale https://eupl.eu/ https://opensource.org/license/EUPL-1.1 https://www.noze.it/en/insights/obbligo-riuso-pa-panorama-normativo/
Cover image: Free and open-source software logo: the word āfossā in white italics on a rounded teal-coloured square ā diagram by ViperSnake151, public domain ā https://commons.wikimedia.org/wiki/File:Free_and_open-source_software_logo_(2009).svg