AI Regulation in the European Union and Trade Law: How Can Accountability of AI and a High Level of Consumer Protection Prevail over a Trade Discipline on Source Code?

Algorithms Off-limits? If digital trade law restricts access to source code of software then accountability will suffer

“…Source languages are not static but dynamically connected to the state-of-the-art of programming implying that older source languages become less relevant meanwhile newer source languages are adopted [42]. The ordinary meaning of source code is potentially very broad covering inter alia any kind of computer program, software system and even the software architecture of entire online platforms expressed in a source language [21].…”

“…Known is that Canada, the EU, Japan, South Korea, Singapore, Ukraine, and the United States (US) back a prohibition on government mandated access to source code of software, China opposes it and also developing countries mount opposition [38]. Uploading the protection of software source code in a plurilateral agreement at the level of the WTO would have repercussions for a range of public interest regulations [21]. Pundits and digital rights advocates are worried that this could hamper efforts to hold developers and providers of transnational algorithmic systems accountable [25,31].…”

“…Aside from a handful of studies [18,21,22,25,31,38], there is hardly any literature on the interface between trade law protection of software source code and regulatory governance of digital technologies, let alone with a focus on computer and machine learning algorithms. The main thrust of this literature is to convey an overview of public interest regulations that require access to software source code [12,21,31] and to provide reasons why algorithmic transparency is important [12,21,25].…”

“…Aside from a handful of studies [18,21,22,25,31,38], there is hardly any literature on the interface between trade law protection of software source code and regulatory governance of digital technologies, let alone with a focus on computer and machine learning algorithms. The main thrust of this literature is to convey an overview of public interest regulations that require access to software source code [12,21,31] and to provide reasons why algorithmic transparency is important [12,21,25]. Analyses informed by international trade law scholarship [12,21] which is short in supply will be related to multidisciplinary literature on algorithmic transparency [3,24], ethics of algorithms [4,26], algorithmic accountability [11,22] and auditing of algorithms [6,32,34].…”

“…The main thrust of this literature is to convey an overview of public interest regulations that require access to software source code [12,21,31] and to provide reasons why algorithmic transparency is important [12,21,25]. Analyses informed by international trade law scholarship [12,21] which is short in supply will be related to multidisciplinary literature on algorithmic transparency [3,24], ethics of algorithms [4,26], algorithmic accountability [11,22] and auditing of algorithms [6,32,34].…”