What Exactly is a Trade Secret Under the Proposed Directive?

Abstract

Trade secrets were always involved in commerce (the Silk Route being a prime example) but have only recently been directly regulated at an international law level (section VII of the TRIPS agreement). The national laws addressing it are often scattered and variegated. Believing this creates hurdles in the internal market, on the 28th November 2013 the European Commission presented a proposal for a directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

The notion of trade secrets contained therein is a carbon copy of article 39 TRIPS, itself based on the US Uniform Trade Secret Act. This article exploits such definition and the questions left unanswered. After providing a background to the current directive and analysing some national definitions and related terminology, the article focusses on four requirements: (1) information, (2) that is secret, (3) valuable due to its secrecy, and (4) subject to reasonable steps to keep its secrecy. The possibility of additional requirements is scrutinized and rejected.

Keywords: EU, TRIPS, trade secrets, directive, know-how, privacy

JEL Classification: Q34, D40, D42, F13, K11, K21, K33, K42, L12, L40, L41, L43