An Appraisal of the EU Directive on Trade Secrets

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The EU Trade Secrets Directive (‘the Directive’) has standardized the national laws in EU member states for the protection of trade secrets. For the first time, a harmonised definition of what constitutes a ‘trade secret’ is established as well as common measures aimed at preventing the misappropriating of trade secrets and rules for procedures and sanctions.
The adoption of the Directive reflects the growing importance of trade secrecy protection internationally. Trade secrets offer protection even for knowhow and business information that cannot be protected by conventional Intellectual Property Rights (IPRs). This could, for instance, be an invention that does not fulfil the requirements to obtain patent protection, such as the eligibility, novelty or non-obviousness criteria or non-technical business information such as price or customer information. Another advantage of trade secrets is that the protection can in principle last in perpetuity, while conventional types of IPRs offer protection only for a limited period of time. Since it is not the information as such which is being protected the trade secret holder cannot, however, object to the fact that a third party independently develops identical products, processes, algorithms etc. Protection lapses as soon as the information protected as a trade secret becomes publicly available or loses its commercial value. As it is well-known from IPR, protecting information comes with strings attached.
National experiences have shown that protecting trade secrets may give rise to special concerns about defining the protectable subject matter and the scope of the protection. One example includes the many instances where secrets are being developed or used as part of an employment contract. Here an overly broad conception of what constitutes a ‘secret’ e.g. to cover the normal skills of the particular trade or a broad scope of exclusivity may limit employee mobility. These concerns are going to magnify in the light of the EU objectives of furthering and securing the free movement of labor. In the same vein, concern has been raised that secrecy protection may impede on the ability of whistle blowers to document irregularities in companies (and for media to report on such events). Other contentious issues include public institutions. For such institutions (notably universities) protecting secrets and engaging in contracts with private companies (PPP) is going to give rise to problems not just regarding the practicalities but also on a more fundamental level as the very notion of keeping information ‘secret’ may be hard to incorporate into existing cultures based on openness and transparency.
The Directive constitute the skeleton of the new EU protection system. The muscles arteries etc. that are going to create a body of EU trade secrets law will develop in the coming years at the intersections between the Directive, the national experiences and the diverse needs of users and society in general. It is for this reason that the contributions in this book cover a broad range of areas: Part I provides the general framework for the Directive and puts trade secrecy protection in context to other broader areas of law such as information law and international law. Part II turns to the implementation of the Directive in the Nordic countries, Germany, United Kingdom and Spain and Portugal. Next, Part III deals with more specific issues that emerge at the interface of trade with other areas of the law, such as the challenges and opportunities that can be expected with regard to employee mobility, choice of law or specific legal frameworks for enforcement of rights and data transfer. Finally, Part IV provides an overview of how specific sectors are affected by the TS regime, including a detailed and technical analysis of various areas of medical applications.
TitelThe harmonization and protection of trade secrets in the EU : An Appraisal of the EU Directive
RedaktørerJens Schovsbo, Timo Minssen, Thomas Riis
Antal sider6
ForlagEdward Elgar Publishing
Publikationsdato9 jul. 2020
ISBN (Trykt)9781788973335
ISBN (Elektronisk)9781788973342
StatusUdgivet - 9 jul. 2020

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