This chapter examines the background and scope of articles 3 and 5 of the Trade Secret Directive. It argues there is considerable risk of divergence in implementation of these provisions by Member States and in their interpretation by national courts. Moreover, the interpretative approach that the CJEU should adopt towards articles 3 and 5 is unclear. Particular difficulties arise in article 3 when it comes to defining ‘independent’ creation, what is the scope of consequential use or disclosure of trade secrets lawfully acquired via reverse engineering, and which acts are in conformity with ‘honest commercial practices’. Article 5‘s attempt to protect freedom of expression and the public interest are laudable, but the mechanism for giving effect to, and conceptualising, these interests is left ambiguous. Thus, while the rights and interests of competitors, consumers, journalists, public authorities and other users of trade secrets are articulated more forcefully in the Directive, as compared with the Proposal, this will not avoid articles 3 and 5 continuing to be sites of contention before national courts and, eventually, the CJEU.
|Title of host publication||Research Handbook on Information Law and Governance|
|Publisher||Edward Elgar Publishing Ltd|
|Number of pages||21|
|Publication status||Published - 1 Jan 2021|