Keeping secrets: International developments to protect undisclosed business information and trade secrets

Abstract

Before 1994, there was not a common international approach to the protection of undisclosed business information and trade secrets. In a number of countries, particularly in Asia, there had even been no recognition or concept of a legal protection for information. However, three different approaches to the protection of business information had evolved — in the British Commonwealth, in Continental Europe and in the United States — and these approaches had influenced the development of laws in a number of other countries. Such legal protection, however, operated only at a national, rather than an international, level. The internationalisation of business and the growth in transborder flows of data meant that information had become an international commodity and needed an international solution to its increasing vulnerability.

This article identifies and analyses how international developments are leading to changes to the traditional ways in which business information has been protected by the law and examines what these changes may be. The effects of three international instruments are explored — the 1992 OECD Guidelines for the Security of Information Systems, the 1994 Trade‐Related Aspects of Intellectual Property Rights (TRIPs), a part of the General Agreement on Tariffs and Trade (GATT), and the 1997 OECD Guidelines for Cryptography Policy.

Keywords:

• cryptography
• OECD Guidelines
• trade secrets
• TRIPs
• undisclosed business information