Letters of Note - which is highly recommended reading at all times - has reproduced this letter by Mark Twain about US copyright law - more specifically about its failure to deal with cheap imports from Canada, and an early example I think of an international exhaustion rule. I think he should have been complaining about Canadian copyright law (which at the time was presumably Imperial copyright) - or perhaps about his own country's Declaration of Independence, or USexit as we might now call it. Which reminds me: one of the many, many disastrous effects of the UK leaving the EU (should it ever actually happen) will perhaps be the revival of the argument that exhaustion should happen globally - and without the constraints of EU law (and the more general constraint of the EU project) it will be harder to resist ... no doubt it would be hard to go the international exhaustion route if we remain in the single market, but that looks like an increasingly less likely outcome: if we want the single market we have to accept free movement, so the outcome is virtually identical to what we already have, and no doubt those who believe we are better off out of the EU will prefer to go for broke and cast the UK adrift in the stormy seas of global trade under the auspices of the WTO.
'via Blog this'
Friday 22 July 2016
Friday 15 July 2016
Trade secrets directive becomes law (but will we have to implement it?)
The European Commission proposed a directive to harmonise
protection of trade secrets throughout the European Union in 2014.
The directive was unanimously adopted by the Council and three weeks
later published in the Official Journal on 15 June 2016, and came
into force on 5 July (Directive
(EU) 2016/943 of the European Parliament and of the Council of 8 June
2016 on the protection of undisclosed know-how and business
information (trade secrets) against their unlawful acquisition, use
and disclosure.) Between publication and entry into force, of
course, the UK's referendum on EU membership reduced the importance
of the directive to this country.
Being a directive, the new law has to be implemented by the Member States. In the general confusion about how the UK will effect its exit, no one knows whether the directive will be implemented. Member States have two years in which to do is that, and two years is also the interval after giving notice under article 50 of the treaty when the UK will leave. However long passes before the UK gives notice, will determine how long the UK will be required to comply with the directive. That could be only a few months.
As with other areas of intellectual property law, however, it does seem quite likely that the UK will continue to ensure that its laws are aligned with those of the European Union. Depending on the future relationship with the EU, the UK might be obliged to comply with the directive anyway. In any event, it is hard to imagine that Parliament could possibly find time to replace more than a tiny part of our EU-derived law. The trade secrets directive is likely to remain important. However, the detailed shape of the Directive is likely to emerge only once the Court of Justice is seised of some cases in which it can give its interpretation of the law – and its rulings will cease, at some point, to apply to the UK.
Article 2 defines a trade secret as information that
The acquisition of a trade secret is unlawful when it is carried out by unauthorised access to materials, or any other conduct which is considered contrary to “honest commercial practices”. Where the trade secret is acquired from a third party and the person who acquired it knew or should have known that the third party was acting unlawfully, that acquisition will also be considered unlawful. Using or disclosing a trade secret will be considered unlawful when it is in breach of a confidentiality agreement or some other duty not to disclose the trade secret or to limit its use.
Remedies are dealt with in Article 11. They include the usual remedies in intellectual property cases – damages, interim and final injunctions, destruction of unlawful goods. There are no criminal offences, but Member States remain free to introduce their own.
The Directive has been criticised as “a threat to public interest and democracy” because of the perceived threat it poses to whistle-blowers and the press. The Panama Papers scandal in 2016 highlighted these concerns. The Directive does provide some protection for whistle-blowers and the press, so the question is whether the exceptions are sufficient. They are set out in Article 5 and cover disclosure of a trade secret for:
English law on breach of confidence, non-statutory as it is, gives narrower exceptions to protect whistle-blowers and the like. The changes demanded by the Directive would not be great, but some extension of the public interest rule (covering, remember, only trade secrets) might well be needed.
Being a directive, the new law has to be implemented by the Member States. In the general confusion about how the UK will effect its exit, no one knows whether the directive will be implemented. Member States have two years in which to do is that, and two years is also the interval after giving notice under article 50 of the treaty when the UK will leave. However long passes before the UK gives notice, will determine how long the UK will be required to comply with the directive. That could be only a few months.
As with other areas of intellectual property law, however, it does seem quite likely that the UK will continue to ensure that its laws are aligned with those of the European Union. Depending on the future relationship with the EU, the UK might be obliged to comply with the directive anyway. In any event, it is hard to imagine that Parliament could possibly find time to replace more than a tiny part of our EU-derived law. The trade secrets directive is likely to remain important. However, the detailed shape of the Directive is likely to emerge only once the Court of Justice is seised of some cases in which it can give its interpretation of the law – and its rulings will cease, at some point, to apply to the UK.
Article 2 defines a trade secret as information that
-
Is secret in the sense that it is not generally known among
or readily accessible to persons within the circles that normally
deal with this kind of information;
-
Has commercial value because it is secret; and
-
Has been subject to reasonable steps under the
circumstances, by the person lawfully in control of the information,
to keep it secret.
The acquisition of a trade secret is unlawful when it is carried out by unauthorised access to materials, or any other conduct which is considered contrary to “honest commercial practices”. Where the trade secret is acquired from a third party and the person who acquired it knew or should have known that the third party was acting unlawfully, that acquisition will also be considered unlawful. Using or disclosing a trade secret will be considered unlawful when it is in breach of a confidentiality agreement or some other duty not to disclose the trade secret or to limit its use.
Remedies are dealt with in Article 11. They include the usual remedies in intellectual property cases – damages, interim and final injunctions, destruction of unlawful goods. There are no criminal offences, but Member States remain free to introduce their own.
The Directive has been criticised as “a threat to public interest and democracy” because of the perceived threat it poses to whistle-blowers and the press. The Panama Papers scandal in 2016 highlighted these concerns. The Directive does provide some protection for whistle-blowers and the press, so the question is whether the exceptions are sufficient. They are set out in Article 5 and cover disclosure of a trade secret for:
-
exercising the right to freedom of expression and
information as set out in the [European] Charter [for Fundamental
rights], including the respect for freedom and pluralism of the
media;
-
revealing misconduct, wrongdoing or illegal activity,
provided that the respondent acted for the purpose of protecting the
general public interest.
English law on breach of confidence, non-statutory as it is, gives narrower exceptions to protect whistle-blowers and the like. The changes demanded by the Directive would not be great, but some extension of the public interest rule (covering, remember, only trade secrets) might well be needed.
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