What is Business Secrecy?
Although the economic actors can file patents, trademarks, designs, or even to benefit from the protection of copyright, these intellectual property rights are sometimes unsuitable to protect certain information.
On the one hand, the acquisition of any intellectual property right implies disclosure. However, disclosing allows a competitor to imitate, and so this may mean for the rights holder that it loses the competitive advantage it had gained through years of research and significant investment. On the other hand, some information is not protectable by any intellectual property right (a commercial strategy, the result of a marketing study, etc.), although they have real value.
To protect the “capacity to innovate” of the economic actors, by June 9, 2018, France will have legislation protecting the business secret. After three unsuccessful French attempts to combat economic and industrial espionage, it was the European Union that gave the impetus for such protection in 2016, by adopting the Business Secrets Directive. If this protection appears in French law in such a late stage, this is due because the very concept of business secrecy is particularly difficult to define. The Directive has the advantage of giving a definition which will be harmonized for all the Member States of the European Union. Information falling within the scope of the business secret must meet three criteria.
The information is not public nor easily accessible. Either it is a single piece of information which is secret, or it is a compilation of a series of information which is not necessarily confidential. It is then the intellectual effort of collecting and sorting information that will be protected.
For example, a company that conducts a study to establish itself in a geographic area and collects public data on the area, will see the assembly of this information protected by business secrecy.
INFORMATION WITH VALUE
This information must then have a “commercial value”, which is the case when one is ready to pay to have access to it.
Finally, whoever controls the information must have taken the appropriate measures to keep it secret. They are varied and may be tangible measures of protection (a safe, use of a secured computer software system) or contractual measures (confidentiality clauses).