Free software and comparative evaluation in the Italian Public Administration

The re-posting of this analysis is part of a cross-posting collaboration with MediaLaws: Law and Policy of the Media in a Comparative Perspective.

The age-old question on the use of free and open source software in the Italian Public Administration (PA) seems to be coming to an end. Last January the Agency for Digital Italy (Agenzia per l’Italia Digitale) opened a work and discussion table to all stakeholders, focusing on the comparative assessment pursuant to art. 68 of the Digital Administration Code (Legislative decree no. 82/2005). The table was closed last month. Now, the Agency will launch a public consultation and will adopt a final text for guidelines. These guidelines will provide the Italian PA with all the operational tools for acquisition of softwares.

Public administrations are expected to provide efficient public services to businesses and citizens across Europe, sharing software solutions, discussing good practice and exchanging their experiences. These are the goals of the programme on Interoperability Solutions for European Public Administrations (ISA) established by the European Commission and where the Open Source Observatory is hosted.

Italian PA is so obliged to give priority to free and open source software (this is common ground, pursuant to paragraph 1 ter of the above mentioned article 68), however, this preference can not be given without a “comparative evaluation”. In fact, one of the tasks of the Agency, for which the table has been set up, is indeed to establish procedures and criteria that will help to justify the choices of the PA in the acquisition of computer programs.

That said, every public body may now ask itself what really would make it different from any other person as to whether to acquire and release software under conditions of free and open source software. The answer is simple: nothing.

The PA, even when is an active subject in the design and implementation of software, and not only when limited to acquire it, basically is a user of the same. Barring exceptional cases, the purpose of the PA is to serve the community and the citizens according to their own goals and skills. For this reason, even when it makes use of external instrumental bodies, including those of non-public nature (such as joint ventures or wholly owned) the activity of the PA is never mainly directed at making profits or at the acquisition of a market position. The economic activity may be carried out only to achieve the satisfaction of the public interest pursued.

It is no exception if – directly or through any of the operational tools made ​​available by the administrative law – the PA makes designs, develops and distributes software; therefore the value of the software that is acquired or created is not of a commercial nature, nor is it the potential sale price of acquired rights on the software. This value lies in the use, namely the in the ability to make the administrative apparatus and the persecution of its own purposes more efficient for the concerned PA in an effective way. In other words, for the PA software is not a product, rather it is a service and not only in the sense on the rules of contracts of the PA, but in the sense given to it in the corporate world.

For the PA it is important that the software works in a consistent way with the purpose for which it was procured, what it is worth in itself is irrelevant. This leads to the conclusion that the return on investment is measured essentially in terms of efficiency. Efficiency which in turn must be measured both in immediate terms (saving of resources with an equal output or increased output utilizing the same resources), both in terms of long-term savings (lower investment for the update, adaptation, migration to the achievement of obsolescence or the appearance of more efficient systems), and – finally – in terms of positive effects to the general or local economy (“spillover effects”).

The PA has the right to acquire software under conditions of free and open source software. There is no doubt about this. Both in the case of a pure acquisition of pre-packaged software (generic), as a simple office application (typical examples: an Internet browser, a word processor, an email client or an operating system) but also if the software is being acquired by the PA through ad hoc customization, where there is a substantial economic investment and in which the software is subject to the rules on re-use.

All the above-expressed concepts have been upheld by the Italian Constitutional Court in 2010, with Decision no. 122 of 22 March. In essence, free and open source software do not refer to a particular technology, brand or product, but rather express a legal feature. What differentiates free and open source software from proprietary software is the different licensed rights on the program. Decision about the adoption of one or the other contractual setting belongs to the user, hence, to the Public Administration, with a strong preference to the free and open source software way.

(Published on www.opensource.com)

One Comment
  1. The strict economic approach that Agenzia per l’Italia Digitale used to evaluate whether or not to allow open-source software use in the Italian Public Administration raises two complex issues.

    First, there is no one open-source software licence. Apart from a general definition (http://opensource.org/osd) of what terms need inclusion, broad differences exist among licences. Some include potentially dangerous provisions. One removes the ASP Loophole (http://www.funambol.com/blog/capo/2006/08/honest-public-license.html) by requiring the release of derivative software that contains the original open-source code, whether the former is a product or service. Since reusing software is best practice in software development, the effect of this provision is magnified. The Italian administration may not want its software exposed to the public, but operating under a licence without the ASP loophole removes that choice. An economic evaluation of open-source software that omits such variables is incomplete.

    Second, this approach ignores some intellectual property that is created within government itself, and thus runs counter to Italy’s policy of encouraging creativity and innovation through intellectual property (http://www.uibm.gov.it/index.php/i-marchi-50/media-e-comunicazione-dirgen/spot-audio-video-dirgen/2007083-the-objectives). The use of open-source software may reduce control over derivative works and hence incentives to research, develop, and exploit them further. The government sector is an often-ignored source of innovation because of the traditional view that it lacks the forces that promote innovation, namely competition, incentives for employees, and an “adhoc-ratic” environment (http://www.ssireview.org/articles/entry/unleashing_breakthrough_innovation_in_government). The Italian government sector employs 14.3% of Italy’s workforce (http://www.oecd-ilibrary.org), representing a significant portion of the Italian economy. While article 65 of Italy’s Industrial Property Code (http://www.wipo.int/wipolex/en/details.jsp?id=13123) provides incentives for the development of patentable innovation in the public service, no such provision is found in the copyright law. By ignoring the creation of intellectual property in this sector in favour of a narrow open-source approach, the Italian government may have missed an opportunity to nurture a potentially lucrative source of innovation.

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