Luc Desaunettes-Barbero

Trade secrets law is probably the least harmonized part of IP law. Nonetheless, there is a growing realization that variable rules concerning trade secrets impact investment decisions, multinational businesses, and hiring policies. Recently this realization has resulted in the introduction of a new Trade Secrets Directive in the EU, which has harmonized trade secrets law across the Union. Nonetheless, agreement about the policy underpinnings, theoretical basis and economic impacts of trade secrets law remains elusive around the globe. Legal approaches vary fundamentally, and application of the law is far from uniform. Although there has been a recent trend towards strengthening trade secrets protection, both in civil and criminal law, as it tends to militate against labour mobility, freedom to imitate, and open circulation of what needs to be known to compete, there are many who support a more nuanced approach that emphasizes the benefits of unrestricted information flows for competitive markets. Opting for a comparative and critical approach, this book proposes a nuanced analysis of: the competing theories that underlie trade secrets law, its theoretical justifications, and the varied doctrinal approaches found around the globe; the law in the US, the UK, France and Germany and the new EU Trade Secrets Directive; statute laws, international instruments, recent court decisions, and works of notable scholars in the field; topics such as the competition for control over knowledge between employees and employers; the growth of industrial espionage, country rivalry and third-party liability; the extent and precise parameters of criminal liability; and the policy implications of excessive restrictions on the transfer of employee knowledge and know-how. This book provides a clear understanding of this multifaceted area of law which is often a fallback or last resort when commercial dealings and relationships go wrong. The authors' analysis of the underlying policy goals and theoretical dimension of the legal status of trade secrets, including choices in relation to the application of criminal law and concepts of property, will prove of enormous value to academics, policymakers, and corporate counsel.

Despite the economic relevance of trade secrets, their legal protection is not based on a robust theoretical corpus, and a large uncertainty remains regarding how they should be legally apprehended. The present book investigates the foundations of their legal protection by assessing its justifications and aims to define how this legal apprehension should be organized. The book starts with a comparative analysis of the US and the EU legal frameworks. It demonstrates the parentship existing between the two systems of protection and highlights that the incremental structuring of trade secrets protection has led to legal systems lacking broad-based conceptual foundations. In both legal orders, trade secrets rely on blurred protection, formally anchored in unfair competition, the strength of which, however, comes closer to that offered by intellectual property law. In this convoluted architecture, the judiciary is required to play a decisive role,especially at the enforcement stage. However, the absence of clarity concerning the telos of trade secrets protection leads to legal uncertainty, potentially incoherent enforcement, and, all in all, to inefficient outcomes from a welfare perspective. The book then explores a theoretical framework based on a distinction between two legal objects: the undertakings’ secret sphere and secret pieces of information. Securing the undertakings’ secret sphere appears as a condition for the competition process to happen in an economy working under structural uncertainty. It requires objective regulations enforced by public authorities. On the other hand, the legal apprehension of secret pieces of information should be considered as falling within the realm of immaterial goods regulation aiming to solve the deficit of marketability of this type of good. This might call – after conducting a careful policy trade-off – for the establishment of relative (i.e. inter partes) subjective rights.

Despite the economic relevance of trade secrets, their legal protection is not based on a robust theoretical corpus, and a large uncertainty remains regarding how they should be legally apprehended. The present book investigates the foundations of their legal protection by assessing its justifications and aims to define how this legal apprehension should be organized. The book starts with a comparative analysis of the US and the EU legal frameworks. It demonstrates the parentship existing between the two systems of protection and highlights that the incremental structuring of trade secrets protection has led to legal systems lacking broad-based conceptual foundations. In both legal orders, trade secrets rely on blurred protection, formally anchored in unfair competition, the strength of which, however, comes closer to that offered by intellectual property law. In this convoluted architecture, the judiciary is required to play a decisive role,especially at the enforcement stage. However, the absence of clarity concerning the telos of trade secrets protection leads to legal uncertainty, potentially incoherent enforcement, and, all in all, to inefficient outcomes from a welfare perspective. The book then explores a theoretical framework based on a distinction between two legal objects: the undertakings’ secret sphere and secret pieces of information. Securing the undertakings’ secret sphere appears as a condition for the competition process to happen in an economy working under structural uncertainty. It requires objective regulations enforced by public authorities. On the other hand, the legal apprehension of secret pieces of information should be considered as falling within the realm of immaterial goods regulation aiming to solve the deficit of marketability of this type of good. This might call – after conducting a careful policy trade-off – for the establishment of relative (i.e. inter partes) subjective rights.