Secrecy by Default: How Regional Trade Agreements Reshape Protection of Source Code

Abstract

A growing number of regional trade agreements include articles prohibiting access to or the transfer of source code as a condition of the import, distribution, sale, or use of software. We challenge this new approach to protecting source code in international economic law. Using Katharina Pistor’s theory of the ‘code of capital’, we find that this approach protects source code as capital at the expense of the regulatory power of states. The new approach differs from existing ways of protecting source code as well as from the protection based on copyrights, patents, trade secrecy, and provisions on forced technology transfer. We show that it establishes the secrecy of source code by default and leaves only a small window for states to require access to source code.

Addressing the Global Data Divide through Digital Trade Law

“…Further, access to source code and algorithms entail various law enforcement issues (e.g., antitrust, data protection, and cybersecurity laws). 199 Given this disjunction, most FTAs lack commitments on prohibiting source code disclosures. Eighteen FTAs in the TAPED dataset had such commitments.…”