Secret Protection Research Articles

Legal analysis of the contract on non-disclosure of commercial information

In the conditions of the development of market relations in Ukraine, the protection of commercial information is becoming an increasingly urgent issue. Growing competition, technological progress and the globalization of markets encourage business entities to implement various measures to ensure the privacy of their data. One of the most effective tools for this is a commercial non­disclosure agreement, which is designed to protect sensitive information from unauthorized use and/ or disclosure. In connection with the constant changes in the economic and legal environment, there is a need for research in the field of commercial non­disclosure agreements. The development of new approaches to the conclusion and enforcement of non-disclosure agreements will allow taking into account changes in the economic environment and technological innovations, which in turn will strengthen the legal framework for business protection. The article examines the legal nature of an agreement on non-disclosure of commercial information, in particular in the context of labor relations, where one of the parties is an employee, and also provides a definition of such an agreement. The author notes that an essential condition of this contract is a clear definition of the information subject to protection. The definition of trade secret covers financial, technical, legal, corporate information and other information of commercial value. The author offers a list of information that can be classified as a commercial secret, and emphasizes the importance of adapting this list to the specifics of legal relations. In particular, in contracts concluded between an employer and an employee, it is necessary to provide for information protection conditions, and also an important aspect is the regulation of the term of the contract, which can extend both to the period of the employment relationship and after its termination. The author emphasizes that the regulation of relations regarding the non-disclosure of commercial information can be implemented within the framework of a mixed contract containing elements of various contracts, which opens up new opportunities for the legal protection of commercial secrets in various spheres of activity. The legal analysis of the specified contract provides an opportunity to consider in detail the structure, essential conditions and features that can significantly affect the effectiveness of its application.

Direction of the「Unfair Competition Prevention Act」for the Protection of Trade Secrets : Focusing on the Comparison with Recent International Trends

Direction of the「Unfair Competition Prevention Act」for the Protection of Trade Secrets : Focusing on the Comparison with Recent International Trends

Safeguarding Secrets, Shaping Acquisitions: Trade Secret Protection and the Role of Distance Between Acquirer and Target

Safeguarding Secrets, Shaping Acquisitions: Trade Secret Protection and the Role of Distance Between Acquirer and Target

Кримінальна відповідальність за злочини проти основ yаціональної безпеки: вітчизняний та зарубіжний досвід

The article deals with the issue of criminal liability for crimes against the foundations of national security on the example of domestic and foreign experience of certain countries. The author specifically analyzes the legislative regulation of criminal liability for crimes against national security in the Republic of Lithuania, the Republic of Latvia, the Republic of Estonia, Georgia, the Republic of Armenia, the Republic of Poland, Switzerland, the Federal Republic of Germany, and the French Republic. The author suggests that there is a need for more in-depth research and improvement of the legal regulations regarding criminal liability for crimes against the foundations of national security in Ukraine. The article proposes resolving any inconsistencies between the title of Section I of the Special Part of the Criminal Code of Ukraine, which is “Crimes against the Fundamentals of National Security of Ukraine”, and the content of the relevant articles included in it. This section should address criminal liability for all activities that threaten Ukraine’s national security. Therefore, the author recommends to include provisions for criminal liability related to the protection of state secrets, safeguarding critical infrastructure, expanding the scope of information security, imposing penalties for actions that aim to harm the state by an authorized person representing Ukraine in dealings with the leadership of a foreign state or organization, and establishing criminal liability for individuals who publicly insult the Ukrainian people or Ukraine.

Drawing the Line Between a Trade Secret and the Skill of an Employee

Chapter 30, Section 5 of the Finnish Criminal Code, prohibits, inter alia, an employee from unlawfully using or disclosing a trade secret to another person during the course of employment. The prohibition remains also in force for two years after the employment has ended. However, the use of one's professional skill is excluded from the prohibition. This article addresses the ambiguous distinction between a skill and a trade secret. Following a legislative change concerning non-compete agreements, the significance of the protection of trade secrets under criminal law has increased and the ambiguity identified in case law has become even more important to resolve. The Supreme Court of Finland has not issued a precedent concerning the matter. The article analyses Court of Appeal rulings with legal dogmatics in order to reduce the ambiguity surrounding the topic. Forty-three rulings from various Courts of Appeal have been reviewed as groundwork for the article. In addition, the aim is to use legal comparison to examine foreign jurisprudence surrounding the topic. The article critically examines a so-called primary rule of interpretation, according to which information exported in stored form is in principle a trade secret. This premise is outdated and problematic and should not be used as the core premise of the evaluation. Instead, the evaluation should focus on an objective analysis of the information itself. The primary starting point in drawing the line between a trade secret and skill should be the employee's experience and ability to independently produce the information claimed to be a trade secret. It would also be reasonable to make the confidentiality criterion for trade secrets stricter by requiring employers to place more emphasis on the confidentiality of the information.

<b>PERLINDUNGAN HUKUM BERDASARKAN UNDANG-UNDANG NO. 30 TAHUN 2000 TENTANG RAHASIA DAGANG</b>

As one component of intellectual property rights, trade secrets have an important position in business activities in Indonesia. Problem formulation How well do the provisions of Law Number 30 of 2000 concerning Trade Secrets protect trade secret owners? And how reasonable is Law Number 30 of 2000 concerning Trade Secrets in interpreting judges' decisions No. 76/PDT.G/2021/PN.CKR on trade secret disputes the plastics industry? This research is analytical, descriptive, and is normative legal research. Deductive inference is used in qualitative analysis of existing evidence. The results and discussion indicate that Law Number 30 of 2000 on Trade Secrets is not yet adequate and effective in providing legal protection to trade secret holders due to its lack of relevance and many legal gaps. The judge ruled the case using Article 1365 of the Civil Code on Unlawful Acts, which is deemed inappropriate because the applicable law should be Law No. 30 of 2000 on Trade Secret Protection. The conclusion is Law No. 30/2000 on Trade Secrets, which provides legal protection to trade secrets in the plastics industry, is ineffective and inadequate in protecting trade secrets due to the absence of specificity regarding the scope, terms, legal protection, and sanctions of trade secrets

Режим секретности: понятие и признаки

The work is devoted to the issues of legal regulation of the secrecy regime, its structure and content. The features of establishing a secrecy regime and its signs are indicated. It is shown that the structure of the regime includes such elements as classification of information, protection of state secrets and declassification. As a result of the conducted research, the authors conclude that the secrecy regime can be considered a kind of legal regime.

Protection of Trade Secrets: Selected Private Law Problems

Protection of Trade Secrets: Selected Private Law Problems

Addressing Criminal Liability for Misuse of Trade Secrets Under Australian Law: Is the Current Legal Framework Adequate to Protect the Interests of Owners of Trade Secrets?

The emergence and dominance of knowledge-based economies have heightened the importance of trade secrets as a “currency” for attaining competitiveness in the market and driving innovation. Yet espousing policies to govern trade secret protection, especially in the criminal law sphere, was not something on which legislative and regulatory policymakers traditionally focused. Recent legislative incentives at a global level have caused the tide to shift and, after decades of being somewhat neglected, the questions pertaining to criminal liability for trade secret misuse are finally gaining attention. The Australian response to recent initiatives ensued in 2018 with the enactment of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) (“EFI Act”) which introduced the first statutory provisions dedicated to criminalisation of state-sponsored theft (economic espionage) of trade secrets. This Act, however, does not provide a comprehensive legal framework to address criminal liability for trade secret misuse, as it leaves outside the scope of its regulation the criminalisation of the theft of trade secrets by individuals for their own benefit. This paper analyses the adequacy of the Australian legal regime concerning criminal liability for trade secret misuse. The analysis is informed by a comparison of the legal provisions of the Australian trade secret regime with that adopted in the United States (“U.S.”) which currently offers a comprehensive framework of protection and criminalises economic espionage as well as the theft of trade secrets. This comparative analysis serves to determine: first, whether the “one way” avenue of statutory protection under Australian law suffices to protect the interests of the owners of trade secrets; and, second, whether a potential reform of the regime designed to include dedicated statutory provisions to criminalise the theft of trade secrets, as is the case in the U.S., could potentially afford a more adequate protection of the interests of trade secret owners.

Black-Box Testing and Auditing of Bias in ADM Systems

For years, the number of opaque algorithmic decision-making systems (ADM systems) with a large impact on society has been increasing: e.g., systems that compute decisions about future recidivism of criminals, credit worthiness, or the many small decision computing systems within social networks that create rankings, provide recommendations, or filter content. Concerns that such a system makes biased decisions can be difficult to investigate: be it by people affected, NGOs, stakeholders, governmental testing and auditing authorities, or other external parties. Scientific testing and auditing literature rarely focuses on the specific needs for such investigations and suffers from ambiguous terminologies. With this paper, we aim to support this investigation process by collecting, explaining, and categorizing methods of testing for bias, which are applicable to black-box systems, given that inputs and respective outputs can be observed. For this purpose, we provide a taxonomy that can be used to select suitable test methods adapted to the respective situation. This taxonomy takes multiple aspects into account, for example the effort to implement a given test method, its technical requirement (such as the need of ground truth) and social constraints of the investigation, e.g., the protection of business secrets. Furthermore, we analyze which test method can be used in the context of which black box audit concept. It turns out that various factors, such as the type of black box audit or the lack of an oracle, may limit the selection of applicable tests. With the help of this paper, people or organizations who want to test an ADM system for bias can identify which test methods and auditing concepts are applicable and what implications they entail.

Trade secrets at risk—the protection against expropriation of a trade secret

Abstract An investor exploiting their trade secret in a foreign territory puts it at risk of disclosure, use, or regulation by the host State. If the risk materializes, a foreign investor may seek to mitigate the impacts with the protections afforded by an investment treaty. As investors in the Czech Republic, Kenya, Pakistan, and Venezuela have sought to do. While the protection of trade secrets has been noted by commentators, a detailed analysis of the protection of trade secrets under international investment law is yet to be offered. In this article, I outline how trade secrets amount to an ‘investment’, the types of risks to a trade secret, and how the protection against expropriation can mitigate four risks for a foreign investor.

Trade Secret Protection and the Integration of Information Within Firms

We examine the effect of trade secret protection laws on internal information integration (i.e., the extent to which economic agents are provided with access to decision-relevant information from other economic agents within a firm). We argue that stronger trade secret protection laws increase firms’ internal information integration because they reduce the proprietary costs of information leakage. To test our prediction, we measure a firm’s internal information integration by the share of its sites integrated into its enterprise management system. Exploiting the staggered adoption of trade secret protection laws via the Uniform Trade Secrets Act (UTSA), we find that these laws increase firms’ internal information integration. This effect is stronger (weaker) for firms with higher proprietary costs (coordination benefits). Further, we provide evidence that the UTSA-induced increase in internal information integration translates into improvements of firms’ internal information quality and decision-making quality. Taken together, our results enhance the understanding of the economic trade-offs shaping firms’ internal information environment. This paper was accepted by Ranjani Krishnan, accounting. Funding: S. Bormann and K. Hombach gratefully acknowledge funding from Deutsche Forschungsgemeinschaft (DFG, German Research Foundation) [Grant Project-ID 403041268–TRR 266 Accounting for Transparency]. Supplemental Material: The online appendix and data files are available at https://doi.org/10.1287/mnsc.2021.03484 .

Know-How and Trade Secrets in Digital Business

This article explores the unique challenges posed by the digital age in preserving the confidentiality of trade secrets and know-how, examines the legal frameworks governing trade secret protection, highlighting the strengths and limitations of existing laws in addressing the complexities of the digital realm. In the modern digital landscape, where data and information drive innovation and economic growth, the protection of trade secrets and know-how has become paramount for businesses seeking to maintain a competitive edge. As companies increasingly rely on proprietary knowledge, processes, and digital assets to differentiate themselves, safeguarding these intangible assets from misappropriation and unauthorized disclosure is crucial. By providing a comprehensive analysis of the challenges and opportunities surrounding trade secrets and know-how in the digital age, this paper aims to equip businesses with the knowledge and strategies necessary to safeguard their valuable intellectual property assets, fostering innovation, competitiveness, and sustained growth in the knowledge economy.

Trade Secrets and the Data Act

Automated systems collect vast amounts of data, which could be utilized across various business sectors. The EU has recognized their potential for the data economy. To exploit such potential, there is a need to provide access to data. For example, the objective of the EU’s Data Act is to provide new possibilities for accessing and reusing information. Some information exchanged may be subject to trade secret protection. However, specific characteristics of trade secret protection create difficulties for information sharing. In essence, trade secret protection requires that information should be kept secret, or at least relatively secret. This requirement contributes to the reluctance of trade secret holders to share their information. They would rather lock it down. That is because, if the information becomes generally known in industry circles, it will lose its trade secret status along with any related competitive advantage. At the same time, trade secret protection leaves considerable room for competition, which arguably makes it suited to the data economy. A trade secret is not an exclusive right, which means that competitors may independently create similar information. Access to information through reverse engineering is also allowed. All these specific characteristics make trade secret protection an uncertain means of protection. This article will elaborate on how the uncertainties and specifics related to trade secret protection create a conflict between demand for access to information and the protection of trade secrets. It will analyze how the provisions of the Data Act aim to accommodate the protection of trade secrets while simultaneously mandating access.

Authorship Attribution Methods, Challenges, and Future Research Directions: A Comprehensive Survey

Over the past few decades, researchers have put their effort and paid significant attention to the authorship attribution field, as it plays an important role in software forensics analysis, plagiarism detection, security attack detection, and protection of trade secrets, patent claims, copyright infringement, or cases of software theft. It helps new researchers understand the state-of-the-art works on authorship attribution methods, identify and examine the emerging methods for authorship attribution, and discuss their key concepts, associated challenges, and potential future work that could help newcomers in this field. This paper comprehensively surveys authorship attribution methods and their key classifications, used feature types, available datasets, model evaluation criteria and metrics, and challenges and limitations. In addition, we discuss the potential future research directions of the authorship attribution field based on the insights and lessons learned from this survey work.

The Proposal for a Directive on Defective Products: A Game Changer for Innovative Medicinal Products.

At the end of 2022, the European Commission published a proposal for a directive to revise the strict liability regime introduced in 1985. Although the main goal of this new proposal is to adapt the regulations to information technologies such as artificial intelligence, it has multiple impacts on other economic sectors, including the pharmaceutical market. Therefore, this proposal could change the deal in terms of liability in this specific market. Indeed, the proposal modifies the burden of proof, which can be quite challenging to establish in the case of adverse effects of medicinal products. It introduces a possible presumption of liability for a manufacturer who fails to communicate, to a court, the information they required, which might jeopardise the protection of trade secrets and commercial confidentiality. In addition, the proposal also extends the limitation period, and more importantly, it mandates the application of the 'development risk defence.'

The Legality of Intellectual Property by Artificial Intelligence in Indonesia

This study aims to examine the legitimacy of intellectual property generated by artificial intelligence (AI) in Indonesia. With the rapid development of AI, intellectual property generated by AI has become a complex issue, attracting the attention of legal experts and stakeholders. Although the legal framework in Indonesia does not specifically address intellectual property generated by AI, certain aspects of existing law may apply in this context. This study uses normative or doctrinal research methods to analyze the legal framework in Indonesia regarding intellectual property, including copyright law, patent law, industrial design law, and trade secret protection. In addition, this research examines the views of legal experts and stakeholders in Indonesia regarding the legitimacy of intellectual property generated by AI. The results of this research are expected to provide a clearer understanding of the legality of intellectual property law produced by AI in Indonesia. Research results will contribute to discussions around AIrelated laws and regulations and may serve as the basis for future regulatory changes or adjustments. This study has significant implications for stakeholders, including AI creators, users, and developers in Indonesia. By understanding the applicable legal framework, appropriate legal protection frameworks can be created for AI-generated intellectual property, promoting continuous innovation and responsible utilization of AI.
 Keywords: artificial intelligence, intellectual property, legality

Non-disclosure Agreements (NDA) as a Legal Protection on Trade Secrets in Work Agreements in Indonesia

A confidentiality agreement or what is often called a non-disclosure agreement (NDA) is often used in every cooperation agreement as a form of protecting a company’s trade secret. NDA is a form of a special agreement between business actors as owners of trade secrets and other parties in a working relationship who have access to the trade secrets of a company. However, a business needs to disclose confidential information to other stakeholders to develop its business interests for better profitability. Through the NDA, the recipient agrees not to disclose confidential information contained in the employment agreement. The problem is how to arrange the NDA as a form of trade secret protection in the work agreement in Indonesia. This paper uses a normative juridical approach, secondary data types, and data collection techniques using literature study with qualitative data analysis techniques. The results of the study show that NDA’s are not regulated explicitly but can be found implicitly in the Trade Secret Law. By making a confidentiality agreement or NDA, the Parties are obliged to maintain confidential information or trade secrets in order to protect the owner of the Trade Secret. Policymakers in a company require the inclusion of an NDA clause in making work agreements that require employees to maintain the confidentiality of company information in accordance with statutory regulations and company regulations.
 Keywords: non-disclosure agreement, trade secret, work agreements

Secret Protection in Discrete-Event Systems With Generalized Confidentiality Requirements

Secret Protection in Discrete-Event Systems With Generalized Confidentiality Requirements

КІБЕРПРОМИСЛОВЕ ШПИГУНСТВО: СУТНІСТЬ ТА НАСЛІДКИ

The article highlights the theoretical aspects of cyber-industrial espionage. The importance of ensuring the protection of trade secrets of companies from cyber intrusions is substantiated, which is confirmed by the amount of damage caused by successful cyber attacks on the scale of the global economic space. The paper examines the essence of cyber industrial espionage through the prism of its comparison with cyber espionage and industrial espionage. It is established that cyber-industrial espionage is a type of cyber-espionage and industrial espionage. Its key features are illegality, unethicality, and unauthorised access by an unauthorised user to a company's trade secret in cyberspace, which is carried out in favour of private entities in order to gain competitive advantages and economic benefits. By the logic of the dialectical combination of the general and the particular, the author identifies the features inherent in cyber-industrial espionage (in particular, its covert, highly organised, planned, systematic nature; wide arsenal of possible technologies, methods of implementation, their combined use; a significant scope and list of negative consequences, difficulties in assessing losses from cyber intrusions, etc.), and reveals the peculiarities of their manifestation in cyberspace. Considerable attention is paid to identifying and clarifying the content of possible negative consequences of successful cyberattacks for companies, including financial losses associated with the theft of confidential information; reputational losses due to loss of trust in the company; theft of intellectual property, R&D results kept as commercial secrets; disruption of critical business processes of companies; forced changes in business practices to improve security, legal, regulatory, psychological and emotional consequences. Determination of the essential characteristics of cyber-industrial espionage and the range of possible negative consequences of its implementation is of theoretical and methodological importance for the development of an effective system of trade secret protection in companies and will help to increase the efficiency of its use.