CPTPP jeopardises the future of open source software: OSIA

By on 13 June, 2018

Open Source Industry Australia (OSIA) is calling upon the federal government to scrap the CPTPP (Comprehensive & Progressive agreement for Trans Pacific Partnership) over provisions  that could decimate the Australian open source community.

As the Senate Standing Committee on Foreign Affairs, Defence & Trade conducts its inquiry into the revised international trade agreement that incorporates most of the original TPP’s provisions, OSIA has called for Australia to withdraw from the deal before it is ratified.

The open source software peak body  has identified loosely worded clauses within the chapter on electronic commerce that could have major impacts on creators and users of open source software.

The offending section is Article 14.17 of the CPTPP, which prohibits requirements for transfer or access to the source code of computer software. OSIA argues that the exceptions within this article are far too narrow and ‘carelessly worded’, leaving them entirely susceptible to interpretation.

The body’s key concern is around the exception that covers ‘the inclusion of terms and conditions related to the provision of source code in commercially negotiated contracts’. Once ratified, 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.

OSIA argues that even if the courts find that FOSS (free and open source software) licences are always considered ‘commercially negotiated contracts’, FOSS-supportive government policies would still be hampered, and a substantial section of the Australian FOSS industry — those who distribute their software under “copyleft” licences, such as GNU GPL — could still suffer considerable damage.

The wording of Article 14.17 makes it unclear whether authors could still seek injunctions to enforce compliance with licence terms that require transfer of source code for cases in which their copyright has been infringed.

“When FOSS authors sue for copyright infringement and the licence contains copyleft terms, they almost always seek an injunction for specific performance,” said OSIA Company Secretary Jack Burton, “That’s because the utility of a copyleft licence depends entirely on compliance with its terms. In such cases a simple award of damages seldom suffices.”

“So we have a situation where the most favourable interpretation could decimate our industry, whereas the least favourable could destroy it,” continued Burton, “Understandably, our members would be unhappy either way. The only solution we see is for the government to reject this highly restrictive treaty.”

OSIA’s submission to the standing committee’s inquiry is also critical of the CPTPP’s provisions on investor-state dispute settlement (ISDS), on intellectual property, the lack of credible independent Australian economic modelling, the lack of demonstrable economic benefit, and the secrecy under which the treaty was negotiated, along with the treaty’s lack of focus on ‘genuine free trade measures’.

“93 to 97 percent of the text is about imposing restrictions, the opposite of free trade,” said Burton.

“That’s not what we’d call a free trade agreement.”

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