Trasparenza del codice sorgente e decisioni automatizzate

Automated decisions made by Public Administration through proprietary software arise delicate issues, among which (i) those concerning protection of the person subjected to an automated decision which produces legal effects concerning him or her, and (ii) those regarding the protection of intellectual property rights on the software used to make the automated decision. Recent judgments of Italian administrative courts declare that the prin- ciple of transparency must be implemented through the right to access to the source code of the proprietary software used by Public Administration, even though the copyright on the software has been retained to the private contractor (with no rights to the PA on the source code itself). This essay focuses on the proportional balancing of interests in the above-mentioned context and argues that the principle of transparency should be best granted in another way, without sacrificing the secrecy of the source code of proprietary software.