Articles of regional Free Software law violate the Italian Constitution
(disclaimer: I am not a lawyer, therefore there may some minor errors in the report below, even if the basic facts are certain)
On March 26th, 2009, the Northwestern Italian Region of Piedmont issued a regional law dealing with “ICT pluralism, adoption and promotion of Free Software, portability of digital documents in Public Administrations”. The reasons why Free Software and open, therefore “portable” digital formats are important for all citizens, even if the concept is still unknown in some italian organizations are explained in other Stop articles, so we won’t repeat them here.
The news is that on March 22nd, 2010 the italian Constitutional Court declared that two articles of that law violate the italian constitution.
Update 2010/03/30:While the general problems described below remains, there is also an important positive element in this sentence that has already been summed up in english by G. Moody.
Back to the two violations now. The first one is Article 1, section 3:
_Transfer of Free Software is exempt from the provisions of Article 171-bis of Law n. 633 of April 22nd, 1941 (Protection of authors rights and other related rights), as replaced by Article 13 of Law n. 248, August 18th, 2000 (New norms of protection of authors rights)._
because that article violates the exclusive legislative powers of the State in all matters of criminal law established in Article 117, section l of the Constitution (see official english translation), for the reason that it says that an article of that law (and, consequently, all the criminal law norms it contains) isn’t applicable anymore.
The second part of the Piedmont regional law that the Court rejected is Article 3 (Right to portable software development):
_1. Everybody has the right to develop, publish and use an original software compatible with the communication standards and "saving" formats of another software, even if the latter is proprietary._
Why? Because, to make a long story short, the extension of such right to proprietary software constitutes a departure from the rules established by other italian laws about copyright (here is the full Court sentence, obviously in italian) and therefore violates the exclusive legislative powers in all matters of civil law established, again, by Article 117, section l of the Constitution.
The rest of the regional law is still valid, even if the government had asked to declare all of it uncostitutional because of these and other alleged violations. It’s early to draw complete conclusions and I am not a lawyer, but it looks quite likely to me that this sentence will surely have some important consequences, possibly even on all other italian regional laws on Free Software and Open digital standards. The reason why I am saying this isn’t the sentence itself as much as the fact that what I just said had been largely anticipated on June 13th, 2009, in the italian Free Software Conference. Here are the notes I took that day, synthesizing what lawyer Ernesto Belisario was saying in his talk about, of all things, “potential problems in italian regional laws about Free Software”:
What is the interest of a Local Public Administration? To establish ethical norms or to save money, produce efficience and other concrete services?
Norms establishing principles are (at least at the regional level) useless and have very little practical effects. Those norms must say who must do what and what are the sanctions for people who fail to comply
Are we sure that italian regions are allowed to legislate on these themes, when we look at Article 117 of the Constitution?
Any law regarding Free Software has impacts on:
coordination of ICT policies
The first two subjects are competence of the State, not of the Regions
The third goes against state laws on copyright, at least when it says or implies that such laws don’t apply to Free Software
Are such laws appealable before the Constitutional Court?
The virdict about the Piedmont law will create a precedent
Can you see now what the real problem is? Especially considering that even recent law proposals at the national level aren’t so robust after all? This sentence may be just the first confirmation that several laws already approved, even with the best intentions, are in fact weak enough to not be enforceable. At this point, I really wonder how many local Free Software laws in other Countries are in the same situation. If you know the answer, please tell me! As far as Italy is concerned, it will be very interesting to hear what the new Piedmont Regional Council, that will be elected on March 29th 2010, will say about this, since there should be in it at least some of the 31 candidates that had officially committed to support Free Software if elected. Even other italian Regions, however, will have to rethink very carefully their Free Software strategies.
Important: if you load the text of the Regional law and then try to follow from there the links to Law n. 633 or Law n. 248, you’ll get a server error. The reason is that those links point to the “Normeinrete” portal, the online archive of italian laws that the italian government recently decided to shut down even if they don’t know how to do it properly.