Confidential Subject Matter Examples from the UK.ppt

Confidential Subject Matter: Examples from the UK Lionel Bently University of Cambridge Aim of Presentation In the light of absence of international or regional harmonization of protection of trade secrecy To present UK approach – shared also in most Common Law countries that once were colonies To see what guidance other legal systems can offer (especially in light of changes) To consider prospects for harmonized standards General Approach to Subject Matter in ‘Trade Secrecy’ Regimes Business or Commercial Information Whatever Form As Long as Secret Valuable In relation to which ‘owner’ takes reasonable steps to maintain secrecy English Approach Action for Breach of Confidence Jurisdictional origins confused 3 components: ‘necessary quality of confidence’ obligation of confidentiality detriment Necessary Quality of Confidence Type of information pretty much unlimited private information government information commercial information ? ‘Trade Secret’ not a special concept (with one exception) ? But, since Human Rights Act 1998 English courts modifying action to protect ‘private life’ as understood in Strasbourg jurisprudence on Art 8 ECHR ? Dividing? Time to Divide? Commercial Secrets Information which is inherently secret (customer lists , suppliers, pricing, profit-margins etc) But not everything at workplace is confidential: Tillery Valley v. Channel 4 [2004] EWHC 1075 Creations: products, processes, recipes etc Novelty and Originality Coco v. Clark [1968] FSR 415: ‘there must be some product of the human brain which suffices to confer a confidential nature upon the information’ (claim failed) Fraser v. Thames TV [1984] QB 44 ‘Unquestionably, of course, the idea must have some significant element of originality not already in the realm of public knowledge.’ De Maudsley v. Palumbo [1996] FSR 447 (idea of all-night club ‘old’; ideas that large ‘lacked novelty’) Cray v. Deltech [2003] EWHC 728 ‘The recipes… although not published to the world in full