Shaping Software Markets: Copyright, Trade Agreements and the Dynamics of Cross-Border Digital Trade in the Asia-Pacific

Nikita Melashchenko · APCA 2026 Annual Conference · Auckland, New Zealand · speaking · (27 October 2026) · event · event site ↗︎

Paper to be presented at the Asian Pacific Copyright Association (APCA) 2026 Annual Conference, “Copyright in the Asia-Pacific: Regional Developments, Global Debates”, Auckland, New Zealand, 27–28 October 2026.

Abstract

Software has become the medium of digital trade. Nothing is produced, sold or delivered in the digital economy without passing through code. A family of copyright-related provisions in trade agreements now governs it, including protection standards for software under the TRIPS Agreement and beyond, the room left for exceptions such as text and data mining, prohibitions on requiring the transfer of or access to source code, and obligations on technological protection measures. These commitments are usually analysed as constraints on domestic policy space. This paper offers a different account. They are market shapers. By allocating control over code, they structure the conditions under which cross-border software markets, and digital trade itself, operate.

Building on an assumption that intellectual property and trade in services are interconnected, the paper undertakes an exploratory study of how the presence or absence of these provisions affects trade dynamics between parties and non-parties to trade agreements. Drawing on a systematic mapping of copyright and software-related provisions across Asia-Pacific agreements, it compares the architectures of copyright treaties, relevant FTAs and recent digital economy agreements, and their domestic implementations across the Asia-Pacific. In this context, artificial intelligence provides the central test. Jurisdictions such as Japan and Singapore have adopted exceptions permitting the training of AI models on protected works, including code, while their trading partners have not. The paper asks whether such regulatory asymmetries translate into development advantages, and how they interact with source code clauses and the three-step test.

The analysis suggests, preliminarily, that existing protection standards for software may be set higher than cross-border digital trade requires. The Asia-Pacific, where these instruments are dense and varied, is where the next settlement between software protection, access and innovation is being negotiated, and the paper draws out what this means for the region’s future agreements.

Keywords: software copyright · digital trade · trade agreements · source code · artificial intelligence · Asia-Pacific