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Digital Trade in Free Trade Agreements (CPTPP (Data localization CPTPP…
Digital Trade in Free Trade Agreements
CPTPP
A digital product means a computer programme, text, video, image, sound recording or other product that is digitally encoded, produced for commercial sale or distribution and that can be transmitted electronically
The definition of a digital product should not be understood to reflect a party's views on whether trade in digital products through electronic transmission should be categorized as trade in services of or trade in goods
TPP Article 14.4.1 Non discriminatory treatment, specifically related to digital products
Like? 2. Less favourable?
Custom's duties, de minimus duties 0-1000
Ban on customs duties on trade in digital products transmitted electronically
limit customs just to the physical instantiation (ie price of a cd, not the music on it)
CPTPP article 14.8 deals with protection of personal information (paragraphs 2 and 5 in particular)
Data localization CPTPP article 14.14
No part shall require a covered person to use or locate computing facilities in that party's territory as a condition for conducting business in that territory.
but there are public policy exceptions
Article 14.17 says no examination of source code (which was chinese practice)
unless it is software used for critical infrastructure
critical infrastructure is defined broadly by china right now, this could be a significant loophole
Ratchet Clauses: Using negative lists, and if at any future date domestically you liberalize further on some provision, then that becomes FTA binding. Can't be brought back in. USA uses these a lot
Legal Framework governing Electronic Tranastion
1996 UNCITRAl Model Law on Electronic commerce
UN convention on the use of electronic Commerce
CPTPP article 14.5
Japan EU FTA 2018
Objective is to contribute to creating an environment of trust and confidence in the use of electronic commerce
no duties on electronic commerce
not require the transfer, or access to, source code owned by a person other than the party
consumer protection measures
this agreement doesn't really move the ball much as far as opening up digital trade (no data localization measures, no free flow of data)