In accordance with Article 69 of the CAD, as regards reuse, an administration is to be considered as the owner of software designed to meet its own specifications whenever:
- it has commissioned such a solution - by means of procurement or other negotiation circumstances of a similar nature, regardless of the title given to the contract - and the contract provides for the acquisition of all intellectual and industrial property rights over the software developed on behalf of the public administration, or in any case does not attribute such ownership to the contractor or to third parties.
- the software was developed by resources within the administration itself.
When negotiating a contract to commission the development of software, each administration must ensure, at the conclusion of the execution of the contract, their full and exclusive ownership of all rights over the software under development, unless this is excessively onerous for proven technical and economic reasons (from Article 69(2) of the CAD).
Software under development refers to the parts of software actually developed in execution of the contract; it is understood that development could be based on the use of existing software components (e.g. open source libraries and frameworks of third parties) for which acquiring ownership is not necessary, only a licence is required (which must be compatible with the purposes of reuse).
Failure to acquire ownership of the work cannot be used to obtain more advantageous economic conditions, since it does not constitute a proven technical-economic reason within the meaning of Article 69(2) of the CAD.
An administration, within the meaning of Article 69, must also acquire all intellectual and industrial property rights to any customisations or software modules intended to be integrated with or interfaced with proprietary software. In this case, the obligation set forth in Article 69 shall apply exclusively to the module or part of the software being developed; this module must therefore be separated from the rest of the software and released in accordance with the methods specified in Development of software from scratch, taking care to specify the required ownership dependency within the documentation.
For example, wording such as the following, where present in software development contracts, allows for the administration to be deemed to be the owner of the rights in the sense required by Article 69 of the CAD:
- ‘the client will own the developed software’;
- ‘the ownership of the IT solution covered by the contract will be attached to the client or administration’;
- ‘at the end of the contract, the intellectual property of the IT solution under development will lie within the competence of the awarding administration’;
- ‘all copyrights on the developed software will be transferred, after the completion of the work, to the awarding administration, which will become the owner’;
- ‘all economic exploitation rights as regards the contracted software shall lie within the competence of the awarding administration’.