TPP and the Open Source Software

Since the release of  the text of the Trans-Pacific Partnership (TPP) last month, the Open Source Initiative and the Free Software Foundation have both publicly criticized provisions of the TPP as an attack on the principles of open source software.

Section 1 of Article 14.17 of the TPP 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.

While there are exceptions for government procurement (Article 14.2), software used for critical infrastructure (Article 14.17, Section 2), and commercially negotiated contracts (Article 14.17, Section 3), the implications are that government parties to the TPP could not enact laws requiring imported consumer devices to be accompanied by source code.  While the Free Software Foundation notes that, in general case, “copyright holders are not a “Party” to the TPP, the regulation would not affect software licensed under the GPL”, an argument could be made that government bodies can be copyright holders (e.g., in Canada under Section 2 of the Copyright Act) and precluded from licensing their works under the GPL (subject to the TPP exceptions).

The Open Source Institute emphasizes the importance of open source using the Volkswagen example.  According to the New York Times, Volkswagon admitted to rigging the proprietary software of 11 million of its diesel cars so that the cars would pass emissions tests — a scheme that would have been deterred had the software been open source.

Lastly, beyond (but related to) open source, the Electronic Frontier Foundation, a leading nonprofit defending civil liberties in the digital world, has articulated other issues with the TPP. The TPP is subject to legal review for accuracy, clarity and consistency and it will be interesting to follow how Article 14.17 will evolve.


Posted on by Sam Posted in Uncategorized

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