The Protection of Trade Secrets: A Conceptual Analysis Along with a Comparative Study on the Laws of Various Nations
affiliation not provided to SSRN
September 28, 2010
A trade secret refers to data or information relating to the business which is not generally known to the public and which the owner reasonably attempts to keep secret and confidential. Trade secrets generally give the business a competitive edge over their rivals. Almost any type of data, processes or information can be referred to as trade secrets so long as it is intended to be and kept a secret, and involves an economic interest of the owner. For example, a business may have certain internal business processes that it follows for its day-to-day operations that give it an edge over its competitors. This could be regarded as a trade secret.
The terms ‘trade secrets’ and ‘confidential information’ may be used interchangeably, but there is a thin line difference between the two. The former mostly refers to technical matters such as secret formulas or processes, whereas, the latter deals basically with non-technical matters such as business plans or pricing information. As an intellectual property, though trade secrets are of great utility, still they have remained neglected so far, and their protection is either done under common law or through the courts.
The basis of the law of trade secrets are certain contractual obligations and the doctrines of fiduciary relationship and unjust enrichment, and the evolution of the trade secrets protection can be traced back to the year 1851, in England and in the year 1868, in the US. Even the TRIPs agreement has mandated the protection of ‘trade secrets’ and definite attempts have been made worldwide, like the Economic Espionage Act (1996), of the US, in addition to the earlier, Uniform Trade Secrets Act, the Japanese law of unfair competition, and the Personal Information protection and Electronic Documents Act of Canada, in India, unfortunately, there is no statutory break through in this regard, and the country is still lagging behind in the protection of trade secrets.
This Paper is an attempt to conceptually analyze trade secrets and various issues involved with the protection of trade secrets, and to study comparatively, the laws practiced in various other developed countries, for their protection.
Keywords: Trade Secrets, Confidential Information, U.S. Economic Espionage Act, Intellectual Property, Indian Law on Trade Secrets
Date posted: September 29, 2010