Right to property and trade secrets

Abstract

Trade secrets are valuable assets that are often used in tandem with intellectual property rights such as patents, trade marks, designs and copyright. While Strasbourg has shown a willingness to find that trade marks, patents and copyright fall within Article 1 Protocol 1 of the ECHR and thus that their protection is a type of human right, it does not follow that the same should be the case for trade secrets. Unlike these intellectual property rights, trade secret protection is not recognized as proprietary in the domestic law of signatory states. Article 17 of the EU Charter of Fundamental Rights, in referring to ‘intellectual property’ as a type of possession, does not assist with the enquiry in the EU context because it is unusual for Member States or EU law to characterise trade secrets as intellectual property. As well, TRIPs obligations do not mandate intellectual property protection. If Strasbourg or Luxembourg were nevertheless to find that trade secrets are within the right to property then this would be likely to create pressure to apply strict liability to third parties, interpret exceptions restrictively and provide for strong enforcement measures. Thankfully, the recently proposed EU Trade Secrets Directive rejects a robust property approach to the protection of trade secrets and instead demonstrates a more balanced unfair competition type model. While the benefits of harmonization in this field may be questioned, the movement away from property rights should be welcomed.