Shaping Source Code Provision in DEFA: Balancing Innovation Protection and Regulatory Access

Source code underpins digital technologies and is typically protected as commercially sensitive intellectual property. While free trade agreements (FTAs) increasingly prohibit mandatory source code disclosure as a condition for market access, governments continue to require access in specific circumstances, including regulatory oversight of algorithmic systems, conformity assessments, law enforcement, and public procurement. Across ASEAN, member states have adopted diverse approaches. These include Indonesia's public procurement requirements, Malaysia's provisions allowing access in criminal investigations, and Thailand's safeguards under trade secret law. Recent FTAs reflect a shift from broad, categorical prohibitions towards more nuanced frameworks that permit regulatory exceptions, raise questions regarding the treatment of algorithms, and preserve space for voluntary disclosure. As ASEAN advances negotiations on the Digital Economy Framework Agreement (DEFA), source code provisions will need to strike a careful balance between protecting innovation and maintaining regulatory and judicial flexibility. This Policy Brief recommends affirming baseline prohibitions on forced disclosure, clearly safeguarding legitimate government access, clarifying the treatment of algorithms, protecting voluntary disclosure, and addressing implications for public procurement. Latest Articles