TPP-11 could harm software licensing, says Open Source Industry Australia

June 21, 2018: Open Source Industry Australia (OSIA) has warned in a Techdirt article that the TPP-11 chapter on e-commerce may damage or destroy the free software licensing sector. OSIA is worried about Article 14.17 of the TPP-11 agreement, which provides that ‘No Party shall require the transfer of, or access to, source code of software owned by a person of another Party, as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory’.

In its submission to the Senate Standing Committee on Foreign Affairs, Defence and Trade, OSIA wrote:

Article 14.17 of CPTPP [TPP-11] prohibits requirements for transfer or access to the source code of computer software. Whilst it does contain some exceptions, those are very narrow and appear rather carelessly worded in places. The exception that has OSIA up in arms covers "the inclusion of terms and conditions related to the provision of source code in commercially negotiated contracts". If Australia ratifies CPTPP, much will turn on whether the Courts interpret the term "commercially negotiated contracts" as including FOSS licences all the time, some of the time or none of the time.

If the Australian courts rule that open source licenses are not "commercially negotiated contracts", those licences will no longer be enforceable in Australia, and free software as we know it will probably no longer exist there. Even if the courts rule that free software licenses are indeed "commercially negotiated contracts", there is another problem, OSIA said:

The wording of Art. 14.17 makes it unclear whether authors could still seek injunctions to enforce compliance with licence terms requiring transfer of source code in cases where their copyright has been infringed.

Without the ability to enforce compliance through the use of injunctions, open source licenses would once again be pointless. Although OSIA is concerned about free software in Australia, the same logic would apply to any TPP-11 country. It would also impact other nations if they joined the TPP-11 later. In other words, the impact of this section on open source globally could be significant.

OSIA says that the problematic clauses grew out of concerns that nations like China and Russia were demanding access to source code as a pre-requisite of allowing Western software companies to operate in their countries. Article 14.17 was designed as a bulwark against such demands. It's unlikely that it was intended to destroy open source licensing too, although some spotted early on that this was a risk. And doubtless a few big software companies will be only too happy to see free software undermined in this way.

OSIA says the fate of free software in Australia will therefore depend on whether the TPP-11 comes into force, and if so, what judges think Article 14.17 means.

OSIA’s concerns are another reason why the Australian Senate Standing Committee on Foreign Affairs, Defence & Trade should recommend against the implementing legislation for the TPP-11.