Open Source Industry Australia Says Zombie TPP Could Destroy Free Software Licensing
from the another-reason-not-to-ratify dept
It seems incredible, but the TPP trade deal is still staggering on, zombie-like. It’s official name is now the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), but even the Australian government just calls it TPP-11. The “11” refers to the fact that TPP originally involved 12 nations, but the US pulled out after Donald Trump’s election. The Australian Senate Standing Committee on Foreign Affairs, Defence & Trade is currently conducting an inquiry into TPP-11 as a step towards ratification by Australia. However, in its submission to the committee (pdf), Open Source Industry Australia (OSIA) warns that provisions in TPP-11’s Electronic Commerce Chapter “have the potential to destroy the Australian free & open source software (FOSS) sector altogether”, and calls on the Australian government not to ratify the deal. The problem lies in Article 14.17 of the TPP-11 text (pdf):
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 committee, the OSIA writes:
Article 14.17 of CPTPP 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, the OSIA says:
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 the OSIA is concerned about free software in Australia, the same logic would apply to any TPP-11 country. It would also impact other nations that joined the Pacific pact later, as the UK is considering (the UK government seems not to have heard of the gravity theory for trade). It would presumably apply to the US if it did indeed rejoin the pact, as has been mooted. In other words, the impact of this section on open source globally could be significant.
It’s worth remembering why this particular article is present in TPP. It 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. Unfortunately, it’s probably too much to hope that the Australian Senate Standing Committee on Foreign Affairs, Defence & Trade will care about or even understand this subtle software licensing issue. The fate of free software in Australia will therefore depend on whether TPP-11 comes into force, and if so, what judges think Article 14.17 means.