A trade secret is a valuable piece of information for an enterprise that is treated as confidential and that gives that enterprise a competitive advantage.
Whether through laborious and costly research, decades of experience, or a sudden burst of creativity, companies constantly develop information which can help them to perform better, faster or at lower cost. Such knowledge can include new manufacturing processes, improved recipes, or information on whom to buy from and whom to sell to. Information protected through a trade secret can be strategic for decades (for example, a recipe or a chemical compound), or ephemeral (for example, the results of a marketing study, the name, price and launch date of a new product, or the price offered in a bidding procedure).
Information, knowledge, inventiveness and creativity are the raw materials of the new economy, and trade secrets are important for companies both large or small, in all economic sectors. However, while large companies have the resources to manage a large portfolio of intellectual property rights, such as patents, smaller companies often cannot afford to do this - therefore their reliance on trade secrets is greater.
On 8 June 2016 following a proposal from the European Commission, the European Parliament and the Council adopted a directive that aims to standardise the national laws in EU countries against the unlawful acquisition, disclosure and use of trade secrets.
The directive harmonises the definition of trade secrets in accordance with existing internationally binding standards. It also defines the relevant forms of misappropriation and clarifies that reverse engineering and parallel innovation must be guaranteed, given that trade secrets are not a form of exclusive intellectual property right.
Without establishing criminal sanctions, the proposal harmonises the civil means through which victims of trade secret misappropriation can seek protection, such as:
EU countries must bring into force the laws and administrative provisions necessary to comply with the Directive by 9 June 2018.
No. Journalists remain free to investigate and publish news on companies’ practices and business affairs, as they were before. The Directive only deals with unlawful conduct by which someone acquires or discloses, without authorisation and through illicit means, information with commercial value that companies treat as confidential in order to keep a competitive advantage over their competitors. If no unlawful conduct takes place, the relevant disclosure of the trade secret is out of scope of the Directive and therefore not affected by it.
Even when a trade secret is misappropriated, the Directive foresees a specific safeguard in order to preserve the freedom of expression and right to information (including a free press) as protected by the Charter of Fundamental Rights of the European Union. The safeguard is operative if the divulgation of the trade secret that was acquired by, or passed to the journalist, was through the use of illicit means such as the breach of law or contract.
No. The directive does not alter the current legal obligations on companies to divulge information for such public policy objectives. The public interest prevails over private interest in such matters. Companies are subject to legal obligations to disclose information of public interest, for example, in the chemical and pharmaceutical sectors. Such regulations, which ensure a high level of transparency, are not affected. The directive does not provide any grounds for companies to hide information that they are obliged to submit to regulatory authorities or to the public at large.
Moreover, the directive does not alter and does not have any impact on the regulations that foresee the right of citizens to access documents in the possession of public authorities, including documents submitted by third parties such as companies and business organisations.
In addition, the directive expressly safeguards those who, acting in the public interest, disclose a trade secret for the purpose of revealing a misconduct, wrongdoing or illegal activity. This safeguard is operative if the trade secret was acquired or passed to the whistle-blower through the use of illicit means such as the breach of law or contract. If no unlawful conduct takes place the disclosure of the trade secret is out of the scope of the directive and therefore no safeguards are necessary.
The theft of trade secrets used to imply stealing or copying a physical document or object. With the digitalisation of information, this form of industrial espionage is increasingly done through unlawful access to computer networks. Cyber theft of trade secrets accounts for an estimated €60 billion of losses in the EU.
It raises particular challenges for various ecosystems in manufacturing or creative and cultural industries. The economic impact of the cyber theft of trade secrets can be reduced by promoting cybersecurity awareness and skilful IP management. As part of the IP action plan of 2020 the Commission announced that it will develop awareness tools and targeted guidance to increase the resilience of EU businesses (and SMEs in particular) against this theft, in collaboration with the EUIPO, EU country authorities and the business community.
The Commission held a workshop on cyber industrial espionage in October 2018, with the participation of representatives and experts from EU countries, EU agencies, individual businesses and business organisations, think tanks, academia, and experts on intellectual property, SMEs and cybersecurity.
The conclusions of the workshop are included in a study that we commissioned on industrial espionage through cyber means. The study includes research on the estimated volume and impact of cyber theft of trade secrets and makes recommendations on policy actions.