Research On The Problems Concerning The Source Code Disclosure In International Digital Trade Rules And China’s Countermeasures

Source code disclosure refers to the disclosure of a company’s software source code to the public or to others,and the source code,as an important economic source of the company,will be protected.However,in practice,source code disclosure still occurs.The situation of source code disclosure can be divided into active disclosure and passive disclosure,where passive disclosure refers to the situation where the government requires enterprises to disclose source code.The government conducts inspections to ensure security.Given the rapid development of computer technology,the government requires disclosure of source code in areas related to national security.The content disclosed by the source code includes intellectual property rights,government regulations,and digital trade barriers.The source code disclosure of international digital trade rules is the result of the game between digital intellectual property protection and trade barriers.Under the continuous exploration of various countries,digital trade rules have formed the situation that most of them exist in free trade agreements and are fragmentation.And this situation is not conducive to global governance,widening the data gap between developed and developing countries.Summarize the source code clauses in the WTO’s multilateral negotiations on e-commerce,the Comprehensive and Progressive Trans Pacific Partnership Agreement,the US Mexico Canada Agreement,the US Japan Digital Trade Agreement,and the Digital Economy Partnership Agreement.The main attitude of these source code clauses is to prohibit mandatory disclosure of source code,which varies in specific exceptions.However,China has recently actively participated in the construction of international digital trade rules,and the use of source code clauses as high standard clauses in digital trade rules will hinder China’s participation in the process of rules.China is committed to developing a high-level level of opening-up to the outside world and steadily improving the level of institutional openness.Actively participate in international digital trade rules,participate in WTO e-commerce negotiations,and apply to join the Comprehensive and Progressive Trans Pacific Partnership Agreement and the Digital Economy Partnership Agreement in 2021.However,there are more or less source code clauses in these digital trade rules.This article analyzes the challenges and obstacles faced by China in this regard: in the multilateral negotiations of WTO e-commerce,the international community has not made any statement on the source code issue,which is not conducive to enhancing China’s discourse power in the construction of digital trade rules.Domestic regulations on source code disclosure are relatively scattered;In the Comprehensive and Progressive Trans Pacific Partnership Agreement,the inconsistency between Chinese laws and source code provisions,as well as issues with the identification of key infrastructure and exception provisions,can hinder the process of China’s accession;Although the source code clause is not included in the Digital Economy Partnership Agreement,there are also provisions for American style intellectual property protection and the possibility of applying source code clauses in other free trade agreements.In the multilateral negotiations on e-commerce in the WTO,it is recommended to propose China’s source code disclosure issue "principles+exceptions" during the negotiations: Compulsory disclosure of source code is prohibited,but lenient specific exceptions can be adopted and included in China’s advocated "legitimate public policy objectives";Develop a clear source code review list in China,determine the scope of review and refine the review procedures according to the source code issues proposed by China.In the process of joining the Comprehensive and Progressive Trans Pacific Partnership Agreement,it is necessary to clarify that China’s current review system is not the same as its perceived source code disclosure,and then coordinate key infrastructure and exception provisions that may pose applicable risks in the source code terms.In the Digital Economy Partnership Agreement negotiations,attention should be paid to strengthening the level of intellectual property protection in the country,taking measures to respond to American style digital trade rules,and providing suggestions to China for source code clauses that may be applicable to other free trade agreements.