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The limits of trade secret protection in the EU

Research output: Chapter in Book/Report/Conference proceedingChapterpeer-review

Original languageEnglish
Title of host publicationResearch Handbook on Information Law and Governance
PublisherEdward Elgar Publishing Ltd
Number of pages21
ISBN (Electronic)9781788119924
ISBN (Print)9781788119917
Published1 Jan 2021

Bibliographical note

Publisher Copyright: © The Editors and Contributors Severally 2021.

King's Authors


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.

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