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Re: [tlug] Copyleft Terms May Become Unenforceable in 11 Countries under CPTPP

On 15 June 2018 at 08:01, Jean-Christophe Helary <> wrote:
What is the current situation in Japan ?

I am not a lawyer, but it seems like a misinterpretation of the treaty text to me.

When it says ...

"No party shall require the transfer of, or access to, source code of software owned by a person of another Party, as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory.

... one has to take into account that "party" in this context means a party to the treaty and thus a government of a treaty country.

As such, it simply means that a government of a CPTPP member country is not permitted to pass any legislation that mandates open source licensing for imported software from another CPTPP member country.

It doesn't mean that companies in CPTPP member countries can no longer use copyleft licenses for their software.

It doesn't even mean that a government cannot require open source software for government software procurement.

It means what it says, a government cannot make laws that force a software rights holder to provide sources as a condition for allowing that software to be imported. That's all.

In fact, the purpose of 3a is to clarify that the terms set out in agreements between non-government actors are not prejudiced by this.

Nothing in this Article shall preclude: (a) the inclusion or implementation of terms and conditions related to the provision of source code in commercially negotiated contracts;

It means that software developers continue to have the right to license their software under whatever conditions they like. Even though a government cannot impose open source as a condition for import, the software rights holder can impose open source as a condition for use.


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