Trade secrets : the EU Directive for the protection thereof

Abstract

As technology and increased global competition reshapes the way we live and work, propelling the EU economy towards one based on informational assets, trade secrets have never been so important. The increased importance of trade secrets for businesses, particularly small and medium enterprises (SME’s), has led such businesses to value trade secrets as much as patents and other forms of intellectual property rights. On the other hand, the technological developments in the cyber world have exposed innovative businesses to dishonest practices aimed at misappropriating trade secrets through theft, unauthorised copying, economic espionage and breach of confidentiality requirements. This has brought about the need for a harmonised body of law containing common definitions, procedures and remedies for cases of trade secret misappropriation, having regard for the need to protect the confidentiality of the secret know-how within the EU. In this thesis I shall highlight the importance trade secrets for open innovation which is an important lever for the creation of new knowledge and underpins the emergence of new business models based on co-created knowledge within the Internal Market. In its 2020 Strategy the EU wants to create an environment which is conducive to cross-border collaboration and investment in innovative processes, services and products, and in which employment mobility as well as the freedom of expression are not hindered. Furthermore, I shall analyse the different legal regimes for the protection of trade secrecy within the 27 Member States which have led to a fragmentation of the Internal Market weakening the effect of the relevant rules therein. This has led to the need for the adoption of a new Directive on the protection of trade secrets against their unlawful acquisition, use and disclosure which I shall discuss hereunder while drawing attention to its implications and possible effects within the EU.