The Limits of EU Trade Secret Protection

S. Sandeen, C. Rademacher and A. Ohly (eds) Research Handbook on Information Law and Governance, Edward Elgar, Forthcoming

King's College London Law School Research Paper No. 2021/3

28 Pages Posted: 16 Nov 2020

Date Written: May 15, 2020

Abstract

During the journey of the EU Trade Secrets Directive 2016/943 controversies surrounded the scope of trade secrets protection and its appropriate limits. There were concerns that public institutions, journalists, employees, whistle-blowers, competitors and consumers would be unduly restricted. As such, what evolved as article 3 ‘Lawful acquisition, use or disclosure’ and article 5 ‘Exceptions’ attracted a great deal of attention, especially at the European Parliament stage. This paper examines the background and scope of articles 3 and 5 of the Directive and argues there is considerable risk of divergence in implementation by Member States and interpretation by national courts. Further, it is unclear what interpretative approach the CJEU should adopt towards these provisions. The paper begins by considering how the Directive conceptually frames trade secrets protection before turning to examine article 3 and then article 5, and finally drawing together conclusions.

Keywords: trade secrets, harmonization, exceptions, limitations, public interest, freedom of expression, whistle-blowing, reverse engineering, lawful acquisition, independent creation

Suggested Citation

Aplin, Tanya F., The Limits of EU Trade Secret Protection (May 15, 2020). S. Sandeen, C. Rademacher and A. Ohly (eds) Research Handbook on Information Law and Governance, Edward Elgar, Forthcoming, King's College London Law School Research Paper No. 2021/3, Available at SSRN: https://ssrn.com/abstract=3671358 or http://dx.doi.org/10.2139/ssrn.3671358

Tanya F. Aplin (Contact Author)

King's College London ( email )

Dickson Poon School of Law
The Strand
London, WC2R 2LS
United Kingdom
+44 (0)20 7848 1049 (Phone)

HOME PAGE: http://www.kcl.ac.uk/law/people/academic/taplin.aspx

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