Data Extractivism and Public Access to Algorithms: Mapping the Battleground of International Digital Trade

Algorithms play an ever-increasing role in today’s information society as filters, gatekeepers, and organizers of information. As such, they represent a key component of the power and influence of big tech companies engaged in ever increasing data extractivism on a global scale. While legal provisions characteristically exclude procedures and mathematical methods from copyright protection (TRIPs Agreement, art. 9.2), political pressure is increasing to ensure legally binding secrecy for algorithms. This pressure has resulted in the inclusion of provisions which impose strict limits on disclosure of a software’s source code and algorithms in a number of free trade agreements signed by the USA and Japan. These provisions, which are on the verge of becoming standard norms in international digital trade, enhance the market power of tech companies in control of algorithms, while at the same time thwarting the quest for increased transparency and accountability of these new informational tools. The chapter examines these emerging norms, discusses their scope and potential effect on the global informational ecosystem, and questions their legitimacy in light of fundamental principles of intellectual property law.