The new incarnation of the Trans-Pacific Partnership has the potential to “destroy” the Australian open source industry, according to Open Source Industry Australia.

After the United States pulled out of the deal following the election of Donald Trump as president, the remaining 11 nations began to renegotiate the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

The terms of the new deal are now the subject of an Australian Senate Standing Committee on Foreign Affairs, Defence and Trade inquiry.

In its submission to the inquiry, Open Source Industry Australia (OSIA) raised a series of concerns about a provision in the Electronic Commerce Chapter that has the “potential to destroy the Australian free and open source software sector altogether”.

The issue lies in Article 14.17 of the TPP-11, which states: “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 important, distribution, sale or use of such software, or of products containing such software, in its territory.”

According to OSIA, this provision has the potential to completely destroy the open source software industry in Australia, and the other participating countries.

“Whilst the intent of this article was likely otherwise, the test as written will have significant detrimental consequences for Australia’s growing open government and digital standards programmes,” the OSIA submission said.

The provision does come with some exceptions, including “the inclusion of terms and conditions related to the provision of source code in commercially negotiated contracts”.

“If Australia ratifies CPTPP, much will turn on whether the courts interpret the term ‘commercially negotiated contracts’ as included Free and Open Source Software (FOSS) licences all the time, some of the time or none of the time,” the submission said.

If Australian courts do rule that open source licences are not “commercially negotiated contracts”, then the open source industry “may well cease to exist”, OSIA director Josh Stewart said.

And even if the courts do rule that open source contracts are “commercially negotiated contracts”, the enforcement of such contracts will be “hindered”, rendering them “toothless”, OSIA said.

“The wording of Article 14.17 makes it unclear whether authors could still seek injunctions to enforce compliance with licence terms requiring transfer of source code in cases where their copyright has been infringed,” the organisation said.

OSIA said that they believe the article was included to prevent countries like China and Russia from demanding access to source code as a prerequisite of allowing Western tech companies from operating in their countries, but an unintended consequence could be the decimation of the local open source industry, depending on how it is interpreted.

“So we have a situation where the most favourable interpretation could decimate our industry, whereas the least favourable could destroy it,” OSIA company secretary Jack Burton.

“Understandably, our members would be unhappy either way. The only solution we see is for the government to reject this highly restrictive treaty.”