«Protected Interest» in relation to confidential information (trade secrets and know-how)

Abstract

This research paper is devoted to the issue of protection of a legally protected interest in respect of confidential information (trade secrets and know-how). It reveals the distinction between the concepts of sub­jective rights and interests protected by law, and the study of terms and interest legally protected interest.In the science of civil law, there are different points of view regarding the understand­ing of subjective law and interest. To properly resolve the issue of the correlation of these concepts with respect to confidential information (commercial secrets and know-how), one has to find out what needs to be understood as interest. Although the current civil law of Ukraine is widespread and uses the term «interest», it does not contain a clear de­finition of the concept of «interest», «interest protected by law», a legal and substantive characteristic, which leads to different interpretations of it in judicial practice.Following the opinion of certain EU lawyers, the «right of access» to confidential information (commercial secrets and know-how) is not considered by the authors of the article as a classical subjective civil law, namely, «protected by law», since such in­formation may only be a factual monopoly (de facto), in contrast to subjective exclu­sive civil law, which arises, for example, from a patent (de jure).Thus, following the traditional positions of continental law, the authors advocate the notion that information (as well as confidential information (commercial secrets and know-how) can not give rise to ownership (possession, use and disposal) and, accordingly, there is no sub-intellectual property right, including intellectual property rights, since this notion is arbitrary. In essence, it is an exclusive right (monopoly). However, since commercial secrets and know-how relate to intangible objects that do not have the char­acteristics of intellectual property objects (exclusive rights), such a monopoly will only be de facto, and not legal (de jure), on for example, from a patented invention.Given this, and taking into account the current civil law, it would be advisable to use the term «protected by law» in relation to such an unusual object as information, confidential information (commercial secret and know-how).Therefore, proceeding from the above, cases in the court on the protection of confi­dential information (commercial secrets and know-how) should be considered not as an overridden or disputed subjective right, namely, as an interest protected by law. And since civil law in Ukraine refers both to the protection of rights and to the protec­tion of interests, it shows that even the legislator proceeds from the doctrine accord­ing to which interest is not included in the content of subjective law, but exists inde­pendently, for its boundaries.If these hypotheses are correct, then questions arise for which scientific communi­ty needs to be answered. They will be of purely practical importance, in particular, for describing (formulating) the subject matter of the dispute, the subject of the action and its grounds in the case of the protection of the interest protected by law regarding confidential information (commercial secrets and know-how). Therefore, it seems that the legislator hastened to «bring» confidential information and, in particular, com­mercial secrets under the legal regime of the object of law, and not under the legal regime of the object of information.