Secrecy by Default: How Regional Trade Agreements Reshape Protection of Source Code

A growing number of regional trade agreements include articles prohibiting access to or the transfer of source code as a condition of the import, distribution, sale, or use of software. We challenge this new approach to protecting source code in international economic law. Using Katharina Pistor’s theory of the ‘code of capital’, we find that this approach protects source code as capital at the expense of the regulatory power of states. The new approach differs from existing ways of protecting source code as well as from the protection based on copyrights, patents, trade secrecy, and provisions on forced technology transfer. We show that it establishes the secrecy of source code by default and leaves only a small window for states to require access to source code.