Copyleft Terms May Become Unenforceable in 11 Countries under CPTPP

The Comprehensive and Progressive Agreement for Trans Pacific
Partnership (CPTPP)
is an enormous (roughly 6,000-page) treaty
between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New
Zealand, Peru, Singapore and Vietnam that was signed in Chile on
March 8, 2018. So far, only Mexico and Japan have ratified it. CPTPP is almost
identical to the original TPP, which included those 11 countries plus
the United States. In early 2017, the US withdrew from the treaty,
which its President had previously described as a “terrible deal”.

CPTPP has many provisions of concern to the FOSS industries and
communities in those countries. Open
Source Industry Australia (OSIA)

has raised a number of those issues with an Australian Senate
committee’s inquiry into CPTPP (see “CPTPP could still destroy
the Australian FOSS industry”
and “Submission to the
Senate Standing Committee
on Foreign Affairs, Defense & Trade
regarding the ‘Comprehensive & Progressive
agreement for Trans Pacific Partnership'”
). The figure below shows the
likely consequences of one such provision, Art. 14.17 in the Electronic
Commerce Chapter
, which deals with transfer of or access to source
code.

Linux Journal readers may be particularly concerned about one of those
consequences: FOSS authors in the 11 CPTPP countries may lose the
ability to use the courts to enforce the copyleft terms in licences such
as the GPL.

To what extent that happens will depend on how each country decides two
questions of legal interpretation: first, whether FOSS licences
constitute “commercially negotiated contracts”; and second, how
significant the omission of “enforcement” from the list of conditional
actions in the provision may be.

At least some adverse consequences of Art. 14.17 are likely in any
countries that ratify CPTPP regardless of the interpretation taken, and
the risk of the more severe consequences in those countries seems
grave.

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