|Prof. Tanya Aplin|
I have been a fan of Professor Tanya Aplin for some time, originally because of her transformation of Gurry on Breach of Confidence and more recently because of her part in the Submission to the UK IPO on the issue of criminal sanctions for the deliberate copying of designs by Sir Robin Jacob and the Professors of IP law at the Universities of Oxford, Cambridge, Glasgow, Edinburgh and Bournemouth. Like Francis Gurry, the Director-General of the WIPO, she is an Australian which is almost a qualification in itself as the courts of that island continent are a laboratory for the development of the common law positively fizzing with bright ideas some good and others not so good.
Professor Aplin was guest of honour at the Intellectual Property Bar Association garden party on Monday which I attended with Robert Griffiths QC, the IPBA's latest recruit, and our pupil Nicola Strachan. Before we could taste our pudding metaphorically speaking we had to eat our greens. In other words we had to listen to a talk before we could go to the party. But this talk by Professor Aplin was the educational equivalent of broccoli, courgettes and okra rather than limp lettuce and institutional cabbage. We were treated to a swipe at a notion that is even more misguided than clause 13 of the Intellectual Property Bill, namely the motions in the bowels of the Commission towards a directive on harmonizing trade secrets law.
The Professor sought to persuade us that such a directive was a bad idea. I don't think many of us needed much persuasion but then what do our opinions matter? Over drinks and canapes in the gardens of Gray's Inn I discussed the Intellectual Property Bill and in particular clause 13 with several colleagues. Not a single member of the IP bar had a kind word for the proposal. Apparently we like the judges, the International Chamber of Commerce, the IP Federation and the professors of our oldest universities made submissions against criminalizing registered design infringement only to be told that ours is a minority view. If that is the case, who constitutes the majority? Is it merely a head count of the subscribers to ACID? One eminent silk with excellent political collections and sensitive antennae pinned the blame on Cable. I do hope that is not the case because I have long been an admirer of the Business Secretary with whom I have much in common. He has already been demonized (not altogether fairly) for his part in the student fees fiasco and his indiscretions to journalists over Rupert Murdoch. It would be regrettable if he were remembered for piloting into law the IP equivalent of the Dangerous Dogs Act.
Anyway back to the talk, there have been two reports on trade secrets law in the EU:
- Report on Trade Secrets for the European Commission by Hogan Lovells International LLP; and
- Baker & Mackenzie's Study on Trade Secrets and Confidential Business Information in the Internal Market.
A quick read of the executive summaries of the two reports shows why the whole notion of a harmonizing
directive is barking. There is some sort of protection for trade secrets in each of the member states (and indeed there has to be because we are each obliged by our membership of the World Trade Organization to protect "undisclosed information" by art 39 of TRIPs as I pointed out in my question) but each member state provides that protection in a different way. Most states do so under a general unfair competition law whereas we and the Irish rely on the law of confidence. Sweden has a trade secrets statute. In most countries using or disclosing trade secrets is a criminal offence. There is also protection in some countries under labour law. If it has taken my whole professional life time to get to the point where we appear to be about to get a single European patent for most but by no means all of the territories of the member states of the EU when we are already party to the European Patent and Paris Conventions, getting agreement on harmonizing trade secrets law will be next to impossible.
Even if we do get agreement on such harmonization will it actually do us any good? I have heard clients moan about inadequate design and trade mark protection in some countries of the world - mainly outside Europe - but I have never heard any complaints about Germans nicking the best British technology or of Italians trousering British designs. The reason for that is that you don't really need any law to protect trade
secrets (or if you do it is too late because the secret is out). What you need are good levels of security. After all the Carthusian monks have managed to keep the recipe of chartreuse a secret since 1764 through good security measures though doubtless they have the sanction of eternal damnation should their secret ever be leaked. As I said in my talk to the Leeds Inventors Club in "All you need to know about confidentiality" some seven years ago you need to monitor and police individual disclosures rather than rely on confidentiality agreements and courts when things go wrong.
|A shot of Chartreuse Wikipedia|
Finally the harmonization that we have had in such areas as database protection and trade mark law has not exactly been a howling success. Professor Aplin described the arguments in favour of harmonizing trade secrets law as "myths" and I think she is right. But if any of you take a contrary view or want to discuss this article or topic give me a ring on 020 7404 5252, fill out my contact form, send me a tweet, write on my wall or say something rude (or nice) about me on G+, Linkedin or Xing..