□ Zheng Wei
At present, with the development of digital trade in full swing, the formulation of digital trade rules has become the focus of the international community. Developed countries export their digital trade rules to foreign countries by signing free trade agreements and making proposals to the world trade organization. When digital trade rules are still in the initial stage of exploration, China can put forward rules that are conducive to the development of China's digital trade by actively participating in international negotiations, so as to get rid of the fate of developing countries dominated by rules.
By analyzing the relevant texts and provisions of high standard free trade agreements such as the US Canada Mexico free trade agreement (usmca), the US Japan Digital Trade Agreement (ujdta), the comprehensive and progressive cross The Pacific Securities Co.Ltd(601099) partnership agreement (cptpp) and the regional comprehensive economic partnership agreement (RCEP), it can be seen that at this stage, the international community has six key points in the field of digital trade rules:
First, the non discriminatory treatment of digital products. Digital products generally accepted by the international community are defined as computer programs, texts, videos, images, recordings or other products that are digitally encoded, used for commercial sales or distribution and can be transmitted electronically. The cptpp requires each party to treat digital products produced in the territory of another party no less than other similar digital products, but allows individual exception areas. Usmca extends the non discriminatory treatment of digital products to broadcasting services, breaking through the principle of "cultural exception".
Second, intellectual property protection in the digital field. Source code is a controversial issue in digital trade rules. Developed countries and regions such as the United States, the European Union, Japan and Canada believe that, in principle, mandatory disclosure of source code should be prohibited, but there can be exceptions. Usmca has upgraded the protection of digital intellectual property rights. In addition to the source code, it also requires parties not to use algorithms, encryption technology (key) as conditions for enterprises to enter a country's market. At the same time, the scope of prohibiting the opening of source code is extended to infrastructure software to expand the scope of protection.
Third, the free cross-border flow of data. The international community has a strong consensus on the free cross-border flow of data, but there are different scales for the premise of "security". RCEP puts more emphasis on the security premise, that is, cross-border transmission can only be carried out for the purpose of business behavior and daily operation; Cptpp emphasizes the barrier free, wide-ranging and non sectoral international data flow, includes the financial sector, and insists on putting the free flow of data above the protection of personal privacy; Usmca emphasizes that the free flow of data shall not be restricted in any way, and the regulatory and security exceptions shall be eliminated. The free flow of data is not limited by the regulatory policies of Member States, the hidden barriers hindering the free flow of data shall be eliminated, and the free flow of data shall be promoted to the greatest extent.
Fourth, the localized storage of data. Data storage localization, that is, the physical location of computing facilities is within national boundaries. Some countries take measures to localize data storage because they attach importance to data security, which will increase the cost of Digital Trade and hinder the cross-border flow of data to a certain extent. At present, international high-level free trade agreements require that data storage localization shall not be used as a condition for entering the country's market to carry out business activities, but the setting of exception conditions is different. RCEP stipulates that contracting parties can enforce the localization of data storage based on public policy objectives and security interests; Usmca completely prohibits data storage localization without exception.
Fifth, the collection of digital service tax. Countries have not reached a consensus on whether to levy a digital service tax worldwide. Some European countries represented by Britain and France actively support it, while some countries represented by the United States and Australia firmly oppose it. The office of the US trade representative has launched a "301 survey" on digital service tax issues in many countries and launched international digital service tax negotiations. Ujdta, cptpp and usmca all put forward the clause that digital service tax shall not be levied, but Japan puts forward the need to ensure the "principle of non discriminatory treatment obligation" in the field of digital service tax.
Sixth, the third-party tort liability of Internet providers. There are special provisions on the third-party tort liability of Internet providers in cptpp and usmca, which stipulates that when defining the tort liability related to information processing in the field of non intellectual property infringement, if the information is not attacked or created by interactive computer services, it shall not be used
Define responsibilities as information content providers. This move was interpreted by some developed countries as "providing a loose institutional environment for network service providers, which is conducive to stimulating their innovation".
Based on the research on the current major digital trade rules of the international community, the proposal of China's digital trade rules should start from five aspects: improving China's digital legislation, piloting cross-border data flow, actively participating in international negotiations, exploring higher-level digital trade rules, and studying and judging the impact of digital service tax:
First, improve the legislation of China's digital supervision. First, refine the measures for blocking the improper extraterritorial application of foreign laws and measures, and introduce laws specifically aimed at the legal use of data, such as the data and information protection law. Learn from the experience of other countries in the world and issue laws on the legal use of data to block the jurisdiction of other countries over data. Second, accelerate the improvement and promulgation of relevant laws, improve the e-commerce law, cross-border data transmission law and network security law, strengthen the supervision of cross-border data transmission and improve the data security assessment mechanism; Accelerate the promulgation of the personal information protection law, benchmark the international high-level personal information protection law, improve China's data protection level, and implement data security.
Second, improve the cross-border data flow mechanism. Accelerate the pilot free flow of cross-border data in the free trade port / zone, implement hierarchical management of data, mainly divide the data into confidential data, important data and general data, and prohibit the flow of confidential data; The restricted flow of important data shall be stored locally or cross-border flow can be carried out after safety assessment by the Ministry of industry and information technology or relevant departments of the State Council, but the scope of important data shall be strictly and clearly defined; For general personal information and data generated in business activities, the overseas receiver meets the conditions of China's technical standards for personal information protection and network security, and allows the free flow of cross-border data.
Third, actively participate in international negotiations on digital rules. Make full use of Internet security exception rules and set exception clauses. First, cultural and audio-visual industries are exceptions. Exclude the cultural and audio-visual industry from the scope of digital product delivery and cross-border data flow. Learn from the experience of the EU, classify the cultural products delivered electronically as cultural services, and do not involve the regulation of cultural and audio-visual industry in the digital trade rules. The second is the exception of national supervision. In order to achieve legitimate public policy objectives, the national government allows restrictions on the free flow of cross-border data and allows local setting of computing facilities. Third, the requirements for cross-border data flow and physical location of computing facilities should meet their respective regulatory requirements, including the requirements to ensure communication security and confidentiality. Fourth, set up exceptional flexibility clauses and "modification, implementation and termination" clauses to reserve negotiation space for better adapting to the changes of digital trade in the future.
Fourth, actively practice higher-level digital trade rules. China should try the digital trade rules in high-level free trade agreements such as cptpp and usmca in the pilot Free Trade Zone, Hainan free trade port and other open Highlands, so as to carry out pressure test and summarize experience for the country in the exploration of digital trade rules in higher level, wider scope and wider fields. In addition, RCEP has come into force. As the world's largest and most potential free trade agreement, Member States should explore a broader consensus on rules on the basis of existing digital trade rules and contribute to the formation of more inclusive and inclusive international rules for digital trade.
Fifth, start the research on digital service tax. Judging from the current situation, although the digital service tax has little impact on China, with China's increasing opening-up in the field of cross-border service trade, the service trade generated by cross-border delivery mode from "forward" to "reverse" will become a probability event. Therefore, China's competent departments of Commerce, finance and taxation should step up detailed research on the digital service tax, comprehensively analyze its internal mechanism, existing scheme terms and possible industrial fields, timely launch the digital service tax, formulate relevant tax rates, and take precautions. At the same time, we should step up the research on the possible impact of digital service tax on China's digital industry and preset countermeasures.
(the author is an associate researcher of China service outsourcing research center)
