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An analysis of the differential approaches to protecting trade secrets in the United States, the United Kingdom and Australia : a need for an international initiative?

posted on 2023-05-28, 01:04 authored by Nashkova, S
The current economic environment featured by the dominance of knowledge-based economies has heightened the importance of commercially valuable information as a 'currency' to attaining competitiveness on the market. That has, in turn, piqued the interest and use of legal mechanisms that afford their protection, such as trade secrets and patents. The proliferation of trade secrets as a vehicle directed to this end finds its rationale in the advantages they offer over patent protection. When recognised by law, trade secrets enable protection of a wider scope of subject-matter, as well as being almost unlimited in 'lifespan', relatively cheap and fast to obtain, which are not inherent features of patent protection. Yet espousing policies to govern the protection of trade secrets was not something that regulatory and legislative policymakers traditionally focused on. Since the first trade secrets cases emerged in the early nineteenth century, there has been little initiative to harmonise trade secrets law at an international level. The only international treaty touching on the subject was the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), under the auspices of the World Trade Organisation (WTO). Its main contribution towards harmonisation is in defining 'undisclosed information' (encompassing trade secrets), and acknowledging the right of the owner to protect such information against disclosure, acquisition or use by others 'in a manner contrary to honest commercial practices'. Nevertheless, TRIPS offers no specific details on how the protection of 'undisclosed information' should be enforced under national regimes. This has been left to national case law and legislation, which has perhaps not surprisingly generated different jurisdictional perspectives on the issue. This thesis investigates the approaches to trade secret protection in the United States (US), the United Kingdom (UK) and Australia, with three main objectives. The first is to identify the origin and development of trade secrets law, therein highlighting theoretical, doctrinal and policy challenges that each regime has encountered in defining and protecting trade secrets absent an internationally applicable instrument to provide uniform guidance. In this context, the thesis also probes the specific initiatives these jurisdictions have taken in responding to emerging challenges that have ultimately shaped the fundamental principles governing their trade secrets regimes. The second objective is to provide a comparative analysis of the key principles of each regime, including the definition of 'trade secret', prohibited conduct, forms of relief, and so forth, to highlight areas of divergence capable of surfacing in cross-border transactions. Where the thesis finds that the jurisdictional-based approaches 'fall short' in providing adequate protection within but also beyond jurisdictional lines, it makes recommendations for improvement. Evaluating the adequacy of each regime from both a local and comparative perspective serves to inform whether the jurisdictional-based approaches remain an apt avenue to protect trade secrets that, in an internationalised world, have become increasingly crossborder in nature. In suggesting to the contrary, the thesis proposes standardised statutory protection of trade secrets, civilly and criminally, in a global context. More than 25 years after TRIPS, the number of initiatives taken in each jurisdiction, challenges for the judiciary and losses suffered by businesses (due to variables resulting in inconsistent protection within and beyond jurisdictional lines) leave little justification for trade secrets law to remain solely the domain of domestic law; instead, these underscore the need for intervention on an international level. Third, based on the conclusion stemming from the evaluation of the adequacy of the trade secret law of each jurisdiction, the thesis proposes that the current US trade secret regime, based on the Defend Trade Secrets Act of 2016 (DTSA), be used as a model for tailoring an internationally applicable instrument. Uniform rules under such an instrument, if implemented under national regimes, will increase the clarity and predictability of the methods of trade secret protection, enabling their more efficient enforcement beyond jurisdictional lines.


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