The Regulation of Source Codes in Digital Trade Agreements and China's Response
Source codes and their algorithmic systems are increasingly being incorporat-ed into national laws and digital trade agreements due to the development of artificial intelli-gence.From the perspective of domestic regulation,many states have promulgated national laws and regulations to govern the transfer of source codes and algorithms,as it has permeated almost every aspect of people's life,and is improving the daily living standards in societies.In the case of the free trade agreements(FTAs),the main element of such source code/algorithm pro-hibition clauses is that,subject to certain exceptions,parties should not prohibit the free access to or transfer of source codes and/or algorithms as a condition of entering into or staying in their domestic markets.Recent FTAs have similar paradigms of source code provisions,but given the inequality between developed and developing countries in the development of digital technolo-gies,and the need for technologically advanced countries to provide some space for their own digital governance and protect high technology in their domestic market,there are some slight differences and exceptions in the source code provisions,and such differences are challenging the general principles of global digital governance and regulation.To be specific,these conflicts are mainly reflected in such issues as the definition and scope of source code and algorithm,the main purpose of source code clauses,the problem of the digital divide,and algorithm accounta-bility.Of course,there exist some exceptions to source code provisions,including the require-ment of domestic economic and judicial regulation,the application of mass-market software and critical infrastructure,public procurement,freely negotiated contracts,open-source software,etc.In particular,to meet the regulatory and judicial requirements of parties to FTAs,source code exceptions in trade agreements should ensure that parties can access the source codes of enterprises of other parties for the internal public interest,so as to guarantee that imported digit-al technologies are compatible with individual rights and social values.When it comes to the regulation of source codes in China,firstly,China should adhere to safeguarding digital sover-eignty and security and respect the right of each country to independently choose its digital regu-latory system in light of its national conditions;secondly,China can gradually accept the regu-latory approach of source code provisions drafted by developed countries in current trade agree-ments,but should preserve some conditional exceptions based on its own national conditions;and finally,China should realize the inclusive development of digital trade step by step through domestic legislation and the negotiation of international agreements.
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