Trade Secrets Legal Protection: From a Comparative Analysis of US and EU Law to a New Model of Understanding (Munich Studies on Innovation and Competition, 19)

Despite the economic relevance of trade secrets, their legal protection is not based on a robust theoretical corpus, and a large uncertainty remains regarding how they should be legally apprehended. The present book investigates the foundations of their legal protection by assessing its justifications and aims to define how this legal apprehension should be organized. The book starts with a comparative analysis of the US and the EU legal frameworks. It demonstrates the parentship existing between the two systems of protection and highlights that the incremental structuring of trade secrets protection has led to legal systems lacking broad-based conceptual foundations. In both legal orders, trade secrets rely on blurred protection, formally anchored in unfair competition, the strength of which, however, comes closer to that offered by intellectual property law. In this convoluted architecture, the judiciary is required to play a decisive role,especially at the enforcement stage. However, the absence of clarity concerning the telos of trade secrets protection leads to legal uncertainty, potentially incoherent enforcement, and, all in all, to inefficient outcomes from a welfare perspective. The book then explores a theoretical framework based on a distinction between two legal objects: the undertakings’ secret sphere and secret pieces of information. Securing the undertakings’ secret sphere appears as a condition for the competition process to happen in an economy working under structural uncertainty. It requires objective regulations enforced by public authorities. On the other hand, the legal apprehension of secret pieces of information should be considered as falling within the realm of immaterial goods regulation aiming to solve the deficit of marketability of this type of good. This might call – after conducting a careful policy trade-off – for the establishment of relative (i.e. inter partes) subjective rights. Acknowledgements Contents List of Abbreviations List of Figures List of Tables Chapter 1: General Introduction Part I: Trade Secrets Legal Protection in the US and in the EU: An Area of Law in Search of Coherence Chapter 2: Introduction to Part I: The Shared and Shaky Foundations of Trade Secrets Legal Protection in the US and the EU Chapter 3: Premise-Intellectual Property and Unfair Competition: Two Regulatory Paradigms with Different Purposes and Apparatus 3.1 Intellectual Property Rights as Legislation Allowing the Emergence of Markets by Converting Specific Information into Trad... 3.1.1 The Public Good Nature of Information and the Need for Legal Excludability to Allow the Emergence of Markets 3.1.2 The Technical Apparatus of Market Opening Legislation 3.1.2.1 Subjective Exclusive Rights in Rem 3.1.2.2 The Need for Material and Temporal Limitations 3.2 Unfair Competition Regulations as Legislation Addressing Imperfect Information Issue 3.2.1 The Logic of Imperfect Information Solving Regulation 3.2.2 The Technical Apparatus of Unfair Competition: The Prohibition of Delineated Market Behaviours 3.3 Conclusion on the Distinction Between Unfair Competition and Intellectual Property Right Chapter 4: Trade Secrets Subject Matter: A Broad and Blurred International Consensus 4.1 The United States Origin of Trade Secret Legal Definition: Emergence and Analysis of a Blurred Object 4.1.1 Emergence of the Definition: The Crystallisation of the Common Law Factors as Legal Requirements 4.1.1.1 Comment b) of §757 Restatement (First) of Tort: A Compilation of Factors Used in the Common Law to Identify a Trade Se... 4.1.1.1.1 The Restatement as an Answer to the Scattered Development of the Trade Secrets Definition Due to the Common Law and ... 4.1.1.1.2 The Uncertainty Regarding the Fundaments of Trade Secret Legal Apprehension 4.1.1.1.3 The Impossibility of Providing a Definition of Trade Secrets and the Synthesis of the Criteria Used in the Common La... 4.1.1.2 Shaping of the UTSA Definition: The Crystallisation of the Restatement Factors as Legal Requirements 4.1.1.2.1 The Crystallisation of the Restatement ́s Factors as Definition Requirements 4.1.1.2.2 The Continuous Absence of the Identification of Clear Ratio Underpinning Trade Secrets Legal Protection and Its Lega... 4.1.2 The Analysis of the UTSA Definition: A Legal Object Without a Clear Shape 4.1.2.1 The Notion of Information: Requirement or Open Gate? 4.1.2.1.1 The Explicit Absence of Restrictions Regarding the Content of the Information 4.1.2.1.2 The Absence of a Clear Interpretation Regarding the Concept of `Information ́ 4.1.2.2 The Secrecy and Independent Economic Value: Two (Potentially) Fundamental Requirements with Uncertain Meaning 4.1.2.2.1 The Independent Economic Value: A Restrictive Requirement or a Descriptive Inclusion Without Normative Value? 4.1.2.2.1.1 The Sketchy Guidance in the USTA 4.1.2.2.1.2 The Uncertainty Regarding the Relationship Between the Economic Value and the Secrecy Requirement 4.1.2.2.1.3 The Criteria Developed in the Case Law to Ascertain the Fulfilment of This Requirement 4.1.2.2.2 The Secrecy Requirement: The Absence of a Clear Benchmark Regarding the Intensity of the Secrecy Required 4.1.2.2.2.1 `Not Being Generally Known ́ or `Not Being Readily Ascertainable ́: The Two Elements of the Secrecy Requirement 4.1.2.2.2.2 The Absence of a Benchmark in the UTSA and in the Case Law Regarding the Intensity of the Secrecy 4.1.2.2.2.2.1 The Encompassment of Any Information Not Public Domain 4.1.2.2.2.2.2 The Need for a Certain Density of Secrecy 4.1.2.3 The Reasonable Efforts of Protection: A Requirement in Search of a Proper Ratio 4.1.2.3.1 The Absence of a Bright-Line Test Regarding the Appreciation of the Reasonable Efforts of Protection Requirement 4.1.2.3.2 The Absence of a Clear Normative Function 4.1.3 Conclusion: The US Definition: The Lack of a Clear Conception 4.2 The Reception of the UTSA Definition Standards into Art. 39(2) TRIPS Agreement as Outcome of Negotiation Strategies 4.2.1 The TRIPS Negotiations: The Opposition of the Developing Countries to Trade Secrets Protection as an Open Door for Impos... 4.2.2 A Definition of Trade Secrets Largely Inspired by the UTSA 4.2.2.1 The Imposition of the UTSA Definition as the Baseline for the Negotiations as an Outcome of the Work of Industry Lobby... 4.2.2.2 More Restrictive Approach and `Constructive Ambiguity ́ as the Way from the UTSA ́s to the Art. 39(2) TRIPS ́s Definition 4.2.3 Conclusion: On the Reception of the US Standard in the TRIPS Trade Secrets Definition: The Outcome of Political Continge... 4.3 Copying Art. 39(2) TRIPS Agreement Definition into Art. 2(1) EU-TSD: A Choice Based Only on Harmonisation Considerations 4.3.1 The Divergences in the Understanding of the Trade Secret Legal Object Within European National Legal Orders Prior to the... 4.3.1.1 France: The Unfair Competition Nature of Trade Secrets Protection and the Resulting Absence of a Trade Secret Legal De... 4.3.1.1.1 The Direct Protection and Definition of `Manufacturing Secrets ́ as an Immaterial Asset 4.3.1.1.2 The Indirect Protection and Absence of a Trade Secrets Definition Under the Unfair Competition Claim 4.3.1.2 United Kingdom: The Genesis of Trade Secrets Protection in the Obligation of Confidence and the Resulting Absence of a... 4.3.1.2.1 A Regime Built on the Obligation of Confidence 4.3.1.2.2 The Confidential Nature of the Information, a Requirement with Very Low Standards 4.3.1.3 Germany: The Definition of an Immaterial Asset in the Frame of an Unfair Competition Approach 4.3.1.3.1 The Emergence of the Definition of `Trade and Industrial Secrets ́ as the Result of the Tension Between the Unfair Co... 4.3.1.3.2 Analysis of the Definition Criteria: The Struggle Between an Objective and Subjective Approach 4.3.2 The Absence of a Clear Vision Regarding the Role of the Subject Matter Definition and the Implementation of the TRIPS De... 4.3.2.1 The Absence of Determination of a Policy Purpose for the Definition 4.3.2.2 The Reception of Art. 39(2) TRIPS Definition in Art. 2(1) EU-TSD 4.3.2.2.1 The Recourse to the TRIPS Definition as the Easiest Solution for the Harmonisation of the Protection 4.3.2.2.2 The Consequence: The Harmonisation of EU Law Around an Uncertain Legal Object 4.3.3 Conclusion: The Adoption in the EU of the TRIPS Definition: A Pragmatic Decision 4.4 Conclusion: The Definition of Trade Secret Subject Matter in US and EU Law: A Blurred and Potentially Wide Encompassing Sc... Chapter 5: Trade Secrets Legal Apprehension: An Uncertain Normative Framework 5.1 A Flexible Protection Lost Between Intellectual Property and Unfair Competition Law 5.1.1 Trade Secrets Scope of Protection Ratione Materiae and Personae: Unfair Competition Premises and Intellectual Property A... 5.1.1.1 The Actions Prohibited: From the Prohibition of Delineated Market Behaviours to the Approximation of the Attribution o... 5.1.1.1.1 The Unfair Competition Premises: The Absence of Recognition of an Erga-Omnes Exclusive Right over the Information Pr... 5.1.1.1.2 The IP Approximation: The Extensive Definition of the Conducts Constitutive of a Trade Secrets Violation as a Negati... 5.1.1.1.2.1 The Unlawful Acquisition of Trade Secrets: An Exception to the Principle of the Free Circulation of Information wi... 5.1.1.1.2.1.1 The Broadness of the Definition of the Behaviours Considered Unlawful 5.1.1.1.2.1.2 The Lawfulness of the Acquisition: A Principle Eroded 5.1.1.1.2.1.2 The Progressive Devaluation of the Principle in the Systematics of Trade Secrets Legislation 5.1.1.1.2.1.2 The Lawfulness of `Independent Discovery ́ and the Inclusion of General Clauses: From Self-Evidence to Uncertainty 5.1.1.1.2.1.2 The Lawfulness of `Reverse Engineering ́: A Decisive Policy Clarification, Based on Exogenous Reasons 5.1.1.1.2.2 The Unlawful Use and Disclosure: Strengthening of the Rights of the Trade Secret Owner over Pieces of Information ... 5.1.1.1.2.2.1 In Combination with an Unlawful Acquisition: The Choice of the Reinforcement of the Owner ́s Exclusivity 5.1.1.1.2.2.2 In Violation of an Existing Duty: The Reinforcement of the Legal Arsenal of the Trade Secret Owner 5.1.1.1.2.2.2 The Absence of an Express Listing of the Duties Concerned Within the Trade Secrets Regulations 5.1.1.1.2.2.2 The Regress to Duties Existing Independently of the Legal Protection of Trade Secrets 5.1.1.1.2.2.3 `Infringing Goods ́ as Confirmation of the Wide Scope of the Notion of Trade Secrets ́ Unlawful Uses 5.1.1.1.2.2.3 The Confirmation of the Extension of the Notion of `Unlawful Use ́ to Follow-Up Commercial Actions 5.1.1.1.2.2.3 The Notion of `Infringing Good ́: Objective Definition and Uncertainty of the Notion 5.1.1.1.2.2.3 The Encompassment of Extra-Territorial Behaviours Under the Scope of Trade Secrets as a True Purpose of the Legi... 5.1.1.2 The Conditions Relative to the Infringer: A Further Approximation to an IP Form of Regulation 5.1.1.2.1 The Absence of a Limitation to Actions Committed by Persons Acting with a Commercial Purpose 5.1.1.2.2 From the Accountability for a Fault to Strict Liability 5.1.1.2.3 The Liability of Third-Parties Under Notice of the Violation 5.1.2 The Enforcement of Trade Secrets Law: The Foreseeing of Civilian and Criminal Remedies 5.1.2.1 The Civilian Remedies: The IP Arsenal and the Role of the Judge as the Final Shaper of the Trade Secrets Legal Framewo... 5.1.2.1.1 The Measures Available: An IP Arsenal 5.1.2.1.1.1 Injunctions and Corrective Measures: Classical Tools for the Enforcement of IP Rights 5.1.2.1.1.1.1 The Content and Aim of Injunctions and Corrective Measures 5.1.2.1.1.1.2 The Temporal Scope of Injunctions 5.1.2.1.1.1.3 The Possibility of the Awarding of Royalties in Lieu of Injunctions 5.1.2.1.1.2 Pecuniary Compensation: The IP Measurement of Their Amount 5.1.2.1.2 The Proportionality Test: The Discretion of the Judge to Decide Upon Civil Remedies as the Fulcrum of Trade Secrets ... 5.1.2.1.2.1 The Discretion of the Judge as an Intrinsic Principle of the Common Law Tradition 5.1.2.1.2.2 The Integration of the US Common Law Discretion in the Trade Secrets Directive 5.1.2.1.2.3 The Decisive Importance of the Proportionality Test and the Lack of Existing Guidelines to Enlighten the Judge in ... 5.1.2.1.3 The Temporal Limitations of Trade Secrets Protection: Between Substantive and Procedural Law 5.1.2.1.3.1 The Difficult Temporal Limitation of Trade Secrets Under Unfair Competition Law 5.1.2.1.3.2 The Strategic Use of Limitation Periods de Lege Lata 5.1.2.2 The Criminal Law Remedies: The Patchy Reinforcement of the Civilian Protection Through the Criminalisation of Certain ... 5.1.2.2.1 The Direct Protection of Trade Secrets by Criminal Law 5.1.2.2.1.1 The Enactment of Specific Provisions Related to Trade Secrets Violations 5.1.2.2.1.2 The Recourse to a General Offence 5.1.2.2.1.3 The Sanction of Unlawful Conducts in the Forefront 5.1.2.2.2 The Collateral Protection of Trade Secrets by Criminal Law: The Example of the Criminalisation of Hacking Practices 5.1.2.2.2.1 The Objective Elements of the Hacking Infractions 5.1.2.2.2.2 Interrelation and Risk of Incoherence with Trade Secrets Protection 5.1.3 Conclusion: The Scope of Protection of Trade Secrets-Uncertain Logic and Intensity 5.2 Interaction with Fundamental Rights: The Difficult Development of a Coherent Normative Framework 5.2.1 The Uncertain Protection of Trade Secrets by Fundamental Rights 5.2.1.1 Trade Secrets Legal Protection and the Fundamental Right to Property 5.2.1.1.1 The Subject Matter of the Fundamental Right to Property as an Institution Guarantee 5.2.1.1.2 The Disputed Classification of Trade Secrets as a Property Institution 5.2.1.1.2.1 The Identification by the Judge of a Property Institution Established by the Lawmaker 5.2.1.1.2.2 The Disputed Encompassment of Trade Secrets 5.2.1.2 Trade Secrets and the Fundamental Right to Privacy 5.2.1.2.1 The Uncertain Content of the Right to Privacy 5.2.1.2.2 The Disputed Material and Personal Encompassment of Trade Secrets 5.2.1.2.2.1 The Uncertain Encompassment of the Information Protected as Trade Secrets in the Material Scope of the Right to Pr... 5.2.1.2.2.2 The Controversial Application of the Fundamental Right to Privacy to Legal Entities 5.2.1.2.3 The Wide Margin of Appreciation of the States Regarding the Positive Obligation to Protect Trade Secrets as Part of ... 5.2.2 Trade Secrets Protection as a Restriction to the Fundamental Right to Freedom of Expression 5.2.2.1 The Content of the Fundamental Right to Freedom of Expression 5.2.2.1.1 The Ratio of the Fundamental Right to Freedom of Expression 5.2.2.1.2 The Scope of Protection of the Fundamental Right to Expression 5.2.2.2 The Interaction of the Fundamental Right of Expression with Trade Secret Legal Protection 5.2.2.2.1 The Legal Protection of Trade Secrets as a Restriction to the Fundamental Right to Freedom of Expression 5.2.2.2.2 The Difficulties in Finding General Guidelines to Solve the Conflicts in the Case Law 5.2.2.2.2.1 The Hypothesis of the Immunity of Trade Secrets Legal Protection Against Freedom of Expression Defences 5.2.2.2.2.2 The Hypothesis of the Impossibility of Limiting Freedom of Expression for the Protection of Trade Secrets 5.2.2.2.2.2.1 The US Probatio Diabolica 5.2.2.2.2.2.2 Prospective Evaluation of the European Approach 5.2.2.2.2.3 The Hypothesis of a Fact-Specific Balancing Analysis 5.2.2.2.2.3.1 The Reliance in Both Legal Orders on a Fact-Specific Balancing Test 5.2.2.2.2.3.2 The Uncertainty Regarding the Factors Relevant to the Analysis 5.2.2.2.2.3.3 Review of Certain Factors 5.2.2.2.3 The Legislative Attempts to Provide External Limitations to Trade Secrets Protection for Journalists and Whistleblow... 5.2.2.2.3.1 The Journalists ́ Exception in the European Directive: A Status Quo Clarification Without Normative Power 5.2.2.2.3.2 The Distinctive Design of a Whistleblower ́s Exception in the Two Legal Orders 5.2.3 Conclusion: The Difficult Interrelation of Trade Secrets Legal Protection with Fundamental Rights Chapter 6: Conclusion: The US and EU Trades Secrets Protection: Two `Twin ́ Legal Orders Presenting a Lack of Coherence Part II: Redefining Trade Secrets Law by Differentiating Between Two Different Legal Objects: The Secret Sphere and the Secret... Chapter 7: Introduction to Part II: A Proposal for a New Model of Understanding Chapter 8: Premise-The Absence of Clear Theoretical Foundations 8.1 The Shortcomings of Ethical Justifications for Trade Secrets Legal Protection 8.1.1 The Inapplicability of Locke ́s Labour Theory as Ethical Justification 8.1.1.1 The Apparent Appropriateness of Locke ́s Labour Theory 8.1.1.1.1 The Reception and Influence of Locke ́s Labour Theory 8.1.1.1.2 The Respect of Locke ́s Provisos as a Result of the Limited Exclusivity Granted 8.1.1.2 The Impossibility of Transposing Locke ́s Utilitarian Premise 8.1.1.2.1 The Weakness of a Reading of Locke ́s Labour Theory as a Purely Deontological Justification of Property 8.1.1.2.2 The Impossibility of Transposing the Reasoning Premise on Trade Secrets, Because of the Immateriality of the Good Pr... 8.1.2 The Impossibility of Deriving Precise Normative Frameworks from Contractarian Theory 8.1.2.1 Rawls ́s Fairness Theory as a Contractarian Justification 8.1.2.2 Limits of Contractarian Theory as a Support to Trade Secrets Legal Protection 8.2 The Difficulty of Giving an Economic Ratio to the Existing Legal Framework 8.2.1 The General Weaknesses of the Existing Legal Frameworks from an Economic Perspective 8.2.2 The Incentive to Create and Innovate Justification 8.2.2.1 The Overall Shortcomings of General Incentive Theory 8.2.2.2 The Difficult Justification of the Existing Legal Protection as Market Failures Solving Regulation 8.3 Conclusion on the Difficulty of Justifying Trade Secret Legal Protection Chapter 9: The Legal Protection of Undertaking ́s Secret Sphere as a Necessity for the Functioning of the Market Economy 9.1 The Undertakings ́ Secret Sphere: A Structural Requirement for the Functioning of the Market Economy 9.1.1 The Market Economy: An Economic System Working in a Situation of Uncertainty 9.1.1.1 The Neoclassical Theoretical Model of Perfect Competition: The Market as a Stand-Alone Machinery in a World of Complet... 9.1.1.1.1 The Conditions and Functioning of the Neoclassical Model of Perfect Competition 9.1.1.1.2 The Absence of a Need for Players or ``Out-of-the Market ́ ́ Coordination 9.1.1.2 Uncertainty as a Structural Characteristic of the Market Economy 9.1.1.2.1 The Dispersion of Knowledge as a Key Characteristic of the Real Economy 9.1.1.2.2 Parametric and Structural Uncertainty as Result 9.1.2 The Market Economy Uncertainty as Being Responsible for the Emergence of a Competition Process Between Undertakings Acti... 9.1.2.1 A Competition Game Between Autonomous Players Acting in a Situation of Uncertainty 9.1.2.1.1 From Perfect Competition to a Game of Competition Because of the Uncertainty of the Competition Process 9.1.2.1.2 The Recognition of the Structural Role of Uncertainty and of the Need for Players to Act Autonomously by Competition... 9.1.2.2 The Entrepreneurial Role of the Players and the Need for Undertakings to Assume This Function 9.1.2.2.1 The Entrepreneurial Role of the Players 9.1.2.2.2 The Need for Out-of-Market Hierarchical Structures to Allow the Development of Entrepreneurial Behaviours 9.1.2.2.3 The Recognition of Undertakings as Players by Competition Law: The Single Entity Doctrine 9.1.3 The Secret Sphere as a Structural Necessity to Secure the Role of Undertakings in the Competition Process 9.1.3.1 The Structural Role of the Undertakings ́ Secret Sphere 9.1.3.1.1 The Necessity of the Permanent Circulation of Information Between the Components of the Undertaking 9.1.3.1.2 The Need for This Flow of Information to Remain Hidden from the Outside 9.1.3.2 Nature and Necessity of Secret Sphere ́s Legal Protection 9.1.3.2.1 An Objective Condition of the Competition Process 9.1.3.2.2 The Necessity for a Legal Apprehension 9.1.4 Conclusion: The Undertakings ́ Secret Sphere: A Structural Condition in Need of Protection 9.2 A Necessary Legal Protection Requiring an Objective Legislation 9.2.1 The Necessity of a Material Identification of the Areas Encompassed in the Secret Sphere 9.2.1.1 The Capacity to Control the Access to the Area 9.2.1.2 The Delineation of the Area and the Signalling Function of the `Reasonable Efforts of Protection ́ 9.2.2 The Material Scope of Protection: A General Prohibition of Conduct Endangering the Secret Sphere 9.2.2.1 The Need for a Deterrent Objective Regulation 9.2.2.2 Possible Models of Regulation 9.2.2.2.1 The Rules-Based Model 9.2.2.2.2 The Standard-Based Model 9.2.2.3 Taxonomy of the Behaviours 9.2.2.3.1 Behaviours That Do Not Need to be Addressed by the Legal Prohibition Aimed at Protecting the Secret Sphere 9.2.2.3.2 The Behaviours That Need to be Prohibited to Protect the Secret Sphere 9.2.3 The Personal Scope of Protection: A Limitation to Persons Acting with a Commercial Purpose 9.2.3.1 The Limitation to Persons Exercising a Commercial Activity 9.2.3.2 The Applications of the Commercial Purpose Criterion 9.2.3.2.1 Private Persons: From the Principle of Exclusion of the Personal Scope to the Burden of Proof of the Absence of Exer... 9.2.3.2.2 Public Authorities: The Exclusion of the Competition Process Referee from the Personal Scope 9.2.3.2.3 Journalists: A Functional Exclusion from the Personal Scope of Protection 9.2.3.3 The Intent of the Violator: From the Principle of an Objective Regulation to the Need for Its Establishment as a Condi... 9.2.4 Public Enforcement and Corrective Mechanisms 9.2.5 Conclusion: The Legal Protection of Undertakings ́ Secret Sphere, a Necessity for the Competition Game Chapter 10: The Legal Apprehension of Secret Pieces of Information as Immaterial Goods Regulation 10.1 The Secret Pieces of Information: Immaterial Goods Suffering from a Marketability Deficit 10.1.1 Pieces of Information as Intangible Goods 10.1.1.1 The Definition of Pieces of Information as Delineable Semantic Units 10.1.1.2 The Good Nature of Pieces of Information 10.1.2 Secrecy as a Condition of, and Obstacle to the Marketability of Pieces of Information 10.1.2.1 Secrecy as a Factual State in Which the Secret Pieces of Information Are Excludable Goods 10.1.2.1.1 The Public Good Nature of Divulgated the Pieces of Information 10.1.2.1.2 Secrecy as the Original Excludable Condition of Any Pieces of Information 10.1.2.2 Secrecy as an Obstacle to the Marketability of Secret Pieces of Information 10.1.2.2.1 The Arrow Information Paradox and the Marketability of Secret Pieces of Information 10.1.2.2.2 The IPR Solution: The Commodification of Pieces of Information 10.1.3 Conclusion: The Nature and Marketability of Secret Pieces of Information 10.2 A Possible Legal Apprehension Relying on the Establishment of Relative Subjective Rights 10.2.1 Ratio, Overall Functioning and Necessary Limitations of the Legal Apprehension of Secret Pieces of Information 10.2.1.1 A Legal Apprehension Aimed at Improving Inter-Partes Disclosure and Hence the Transferability of Pieces of Information 10.2.1.2 The Substitution of the Self-Help Exclusivity Through the Recognition of a Relative Subjective Right 10.2.1.3 The Relationship Between the Subjective Right and the Contract 10.2.1.4 The Establishment of the Subjective Right as a Policy Trade-Off 10.2.1.4.1 A Restriction of Competition of Lesser Intensity in Comparison to Classical Forms of Intellectual Property Rights 10.2.1.4.2 The Remaining Need for the Legislator to Operate a Policy Trade-Off 10.2.2 The Legal Apprehension of Secret Pieces of Information 10.2.2.1 The Personal Scope of Protection: The Consequences of the Relativeness of the Subjective Right 10.2.2.1.1 In the Frame of Contractual Negotiations 10.2.2.1.2 Outside of the Frame of Contractual Negotiations 10.2.2.1.2.1 The Justification and Criterion of the Encompassment 10.2.2.1.2.2 Spying Behaviours as Constellations Within the Personal Scope of Protection 10.2.2.1.2.3 Acquisitions by a Third Party from an Intermediary as In-Between Constellations 10.2.2.1.2.3.1 Constellation and Justification for a Legal Encompassment 10.2.2.1.2.3.2 Criterion for the Encompassment 10.2.2.1.2.4 Independent Discovery and Reverse Engineering as Constellations Outside the Personal Scope of Protection 10.2.2.2 The Subject Matter and Material Scope of Protection: Multiple Tailoring Possibilities 10.2.2.2.1 General Considerations on Tailoring the Subject Matter and Material Scope of Protection 10.2.2.2.1.1 The Possibility of Relying on General or More Tailored Systems 10.2.2.2.1.2 The Need for Coherence with the Remaining Intellectual Property Legal Framework 10.2.2.2.2 The Subject Matter: The Type of Information Protected 10.2.2.2.2.1 The Minimal Requirement: A Tradable Piece of Information 10.2.2.2.2.2 The Possibility of Imposing Additional Requirements 10.2.2.2.2.2.1 Foreseeing an Increased Degree of Factual Excludability 10.2.2.2.2.2.2 Establishment of Other Requirements Concerning the Utility of Pieces of Information 10.2.2.2.2.3 The Possibility of Excluding Specific Pieces of Information 10.2.2.2.3 The Material Scope: A Legal Prerogative to Control the Use of a Piece of Information 10.2.2.2.3.1 The Principle of the Recognition of Legal Authority Concerning the Use Made of a Piece of Information 10.2.2.2.3.2 The Palette of Possibilities for the Right to Control the Use 10.2.2.2.3.3 The Exhaustion of the Subjective Right 10.2.2.3 The Temporal and Territorial Scope of Protection: Classical Features of Exclusive Rights 10.2.2.3.1 The Temporal Scope of Protection: The Limitation of the Subjective Right Through the Foreseen of a Term of Protecti... 10.2.2.3.2 The Territorial Scope of Protection: The Territoriality of a Subjective Right 10.2.2.4 The Subjective Right Enforcement: The Necessity of a Flexible IP Arsenal 10.2.2.4.1 The Policy Function of the Enforcement Rules 10.2.2.4.2 The Necessity of a Combined and Articulated System Between Property and Liability Secondary Rules Models 10.2.2.4.2.1 The Prevalence of Injunctions 10.2.2.4.2.1.1 The Most Direct Transcription of the Primary Rules ́ Adjudication 10.2.2.4.2.1.2 The Prevalence of Market Transactions Over Damage Valuation 10.2.2.4.2.2 The Necessity of Relying on Damages as Corrective Measures Against Dysfunctional Effects 10.2.2.4.2.2.1 The Pitfalls of an Inflexible Property Model: An Open Gate for the Emergence of Dysfunctional Effects 10.2.2.4.2.2.2 The Possibility of a Combined System and Remedy Articulation 10.2.2.4.3 The Need for a System Capable of Adapting Its Response to Public Interest Considerations 10.2.2.4.3.1 The Necessary Recourse to a Proportionality Test 10.2.2.4.3.2 The Restriction to the Subjective Right as Interference with a Property Interest 10.2.2.4.3.2.1 Ordering of the Subjective Right as Property Interests 10.2.2.4.3.2.2 The Scale of Interference ́s Intensity Relative to a Property Interest 10.2.2.4.3.3 Balancing the Subjective Right with Competing Interests: The Example of the Fundamental Right to Expression 10.2.2.4.3.3.1 Balancing Assessment: A Fact-Based Valuation Contingent on the Legal Traditions 10.2.2.4.3.3.2 The Identification and Ordering of the Intensity of the Potential Conflicts Resulting from the Subjective Right... 10.2.2.4.3.3.3 Assessment Guidelines for the US and EU Legal Orders 10.2.3 Conclusion: A Legal Apprehension Through the Granting of Subjective Rights with a Relative Scope of Protection Chapter 11: Conclusion: The Distinction Between the Secret Sphere and Secret Pieces of Information-The Need of a New Conceptua... Part III: Conclusion Chapter 12: General Conclusion Part IV: Summaries Chapter 13: German Summary: Der rechtliche Schutz von Geschäftsgeheimnissen-Von einer vergleichenden Analyse des Schutzes in d... Chapter 14: French Summary: La protection juridique des secrets d ́affaires-D ́une analyse comparative des protections conférées... Annex: Comparison of the Existing Trade Secrets Definitions Legislation Table of Cases European Union France Germany Luxembourg United-Kingdom United-States Gouvernement Documents Rapports and Consultations Bibliography Monographies Articles, Reviews and Contributions Uncategorized References