Frequently Asked Questions
Do articles 68 and 69 of the CAD (Digital Administration Code) apply to public schools for the acquisition and reuse of software, whether for teaching or amministrative purposes?
The subjects to which the provisions of articles 68 and 69 of the CAD apply are the public administrations referred to in Article 1, paragraph 2, of Legislative Decree No. 165 of 30 March 2001, in compliance with the division of powers referred to in Article 117 of the Constitution; among these, we find the institutes and schools of all levels and educational institutions. The combined provisions of articles 68 and 69 of the CAD do not make any distinction regarding the type of purpose of a software. The object of the obligation imposed by the aforementioned provisions is the software owned by the public administration.
In which cases is a Public Administration considered owner of a software?
The administration must be considered the owner of a software developed on its specific indications whenever:
- it commissioned the solution, through a contract or other negotiation agreement, and the contract provides the acquisition of all intellectual and industrial property rights on the software developed on its behalf or in any case does not attribute such ownership to the contractor or third parties;
- the software was developed by internal resources of the administration.
Do articles 68 and 69 of the CAD (Digital Administration Code) apply before any software procurement?
Articles 68 and 69 of the CAD apply in any case of acquisition by public administrations of solutions, software programs or parts of it regardless of the type of procedure. For further information regarding the CAD, please refer to this link.
Can non-open source software owned by a Public Administration be reused?
It is necessary to distinguish between software specifically developed at the request of the Public Administration (or developed internally) and commercial software for which an administration has acquired a license to use. Only the software belonging to the first category is subject to Article 69 of the CAD regarding reuse: for such solutions, the administrations must mandatorily acquire full ownership of the source code and must proceed with the release in open source. The commercial software acquired through a usage license cannot be reused.
What indications are provided for the fulfillment of article 69 regarding the choice of license?
The "Guidelines for the acquisition and reuse of software for public administrations", adopted by AgID in conformity with articles 68 and 69 of the CAD, provide that the choice of license by a Public Administration be made by choosing a license among those certified by Open Source Initiatives. For further information regarding the licenses, please refer to this resource.
Is it possible to apply, within the context of the reuse process of a solution, a different license to the derivative work than the one applied to the original work, in virtue of the principle of compatibility of licenses?
The "Guidelines for the acquisition and reuse of software for public administrations", adopted by AgID in conformity with articles 68 and 69 of the CAD, define, in paragraph 3.5.3, the decision tree for the choice of an open license; in particular, if the release of the software refers to a modification of existing open source software (therefore taken from reuse by other administrations or owned by third parties), the administration will use the same license with which the software was originally distributed, to favor its maximum interoperability and reuse with other users of the same software.
To which competent authorities can the failure to apply articles 68 and 69 of the CAD (Digital Administration Code) by a Public Administration be reported?
Pursuant to Article 17, paragraph 1-quater, the Office of the Digital Ombudsman is established at AgID, which is responsible for collecting all reports regarding alleged violations of the Code of Digital Administration, or any other regulation regarding digitization and innovation, to guarantee the digital rights of citizens and businesses. Anyone can report alleged violations of the provisions of the CAD, including those under articles 68 and 69, by accessing the dedicated area on the AgID website.
What sanctions could be imposed on a Public Administration if it acquires solutions or software programs without carrying out a comparative evaluation of a technical and economic nature?
The CAD does not provide for direct sanctions; however, if a Public Administration disregards the provisions concerning the methods of acquiring software, profiles of managerial and disciplinary liability could arise, without prejudice to any liability for damage to public funds.
What sanctions could be imposed on a Public Administration if it does not proceed with the release in open source of the software developed or commissioned by it?
The CAD does not provide for direct sanctions; however, without prejudice to any profiles of managerial and disciplinary liability, the failure to release for reuse of software solutions prevents other administrations from proceeding with the related evaluation and acquisition for reuse, thus configuring a possible liability for damage to public funds.
How is the vitality index displayed for each software calculated?
The vitality index, as provided by the guidelines for the acquisition and reuse of software for public administrations, indicates the degree of activity carried out in the last time frame on each repository indexed in the catalog. A detailed explanation of the parameters used to calculate the index is present in this page. This index is calculated every night and, currently, the time window considered is 60 days.
How can the reuse of a software be declared?
For each solution taken for reuse, a simple declaration can be made as provided by the Three-Year Plan for IT in Public Administration. To carry out this operation, you can follow the instructions provided in the dedicated page.
