International Source Code Secrecy and the Characterization of Intellectual Property as National Security

This chapter explores the emergence of source code secrecy rules in Free Trade Agreements (FTAs) and their implications for the future of intellectual property (IP). Rooted in geopolitical rivalry, these rules are framed as safeguards for national security and cybersecurity but carry significant potential social, economic, and environmental costs.

It traces the historical and geopolitical contexts that have shaped the rise of source code secrecy. Given that software-dependent technologies are now the dominant modality of innovation, the chapter highlights the impact of source code secrecy on domestic regulatory oversight, innovation, the right to repair, and equitable technology transfer to least-developed countries.

The larger theme addressed is the growing entanglement of intellectual property with national security, evidencing a shift from private economic rights to IP’s appropriation for state control and geopolitical positioning. This securitization precludes the public interest dimensions of intellectual property. In turn, this undermines the TRIPS bargain and limits governmental discretion to pursue public interest objectives, such as fostering open innovation and knowledge dissemination.

Through an interdisciplinary analysis, the chapter critiques the opacity of source code governance and its negative impacts on democratic accountability, participatory innovation, the right to repair, and development-oriented global technology transfer. It argues that the gradual characterization of IP as national security risks exacerbating global inequities in access to technology and knowledge. The chapter concludes with a call for collective resistance and advocating for intellectual property norms that prioritize decentralized innovation, transparency, accountability, and the broader public interest.