The Trouble With the TPP, Day 27: Source Code Disclosure Confusion – Michael Geist
More from noted IP attorney and scholar Michael Geist on the TPP, the massive trade agreement that would affect (at least) 40 percent of the world’s economy. The problem that Geist highlights begins with the definitional uncertainty—”mass-market software” is not defined in the agreement, it seems—and goes from there. The concern over the language and its consequences is significant. Geist quotes the former US NSA general counsel Stewart Baker as highlighting the policy difficulties put into motion by the language and its fuzziness. But Baker’s argument appears to rest on the notion that security stats with obscurity. And that exposure leads to vulnerability. These notions seem dated, at best and lead to equally convoluted fantasies of security and access that today’s (not yesteryear’s) leading security critics deplore.
Fortunately, though the TPP has been signed, there remains a two-year period of discussion before it can be ratified and take effect.
Another Trouble with the TPP is its foray into the software industry. One of the more surprising provisions in the TPP’s e-commerce chapter was the inclusion of a restriction on mandated source code disclosure. Article 14.17 states: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. The provision is subject to some limitations. For example, it is “limited to mass-market software or products containing such software and does not include software used for critical infrastructure.” The source code disclosure rule is not found in any other current Canadian trade agreement, though leaked documents indicate that it does appear in a draft of the Trade in Services Agreement (TISA).