Trade secrets protection: a European affair
Despite discussions about freedom of expression, right to investigate and protection of sources of information, Directive (EU) 2016/943 on the protection of undisclosed know-how and business information against their unlawful acquisition, use and disclosure was published on June 15. It entered into force on July 5, with a two-year period for implementation by member states.
The cumulative conditions for a trade secret being protectable are (article2):
• The information must be secret, in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to people within the circles that normally deal with the kind of information in question;
• It must have commercial value because it is secret; and
• Reasonable steps have been taken by the person lawfully in control of the information to keep it secret.
This definition is the one provided in the TRIPS Agreement (article 39).
Even though “information”, “commercial value” or “reasonable steps” are not defined, the directive notably excludes trivial information, experience and skills gained by employees in the normal course of their employment from the definition of trade secrets.
Trade secret protection should cover know-how, business or technological information. Commercial value can be actual or potential and information has such commercial value when its illegal disclosure or use undermines the scientific and technical potential, business or financial interests, strategic positions or ability to compete by the one who owned it. As a result the directive can cover all kinds of information.
Protection does not apply when information is obtained by independent discovery or creation, reverse-engineering, disclosure made by workers to their representatives as part of the legitimate exercise of their representative function or when it concerns any other practice which under the circumstances is in conformity with honest commercial practices (article 3).
