Publication of the Industrial Secrets Act Draft
By Santiago Soler Lerma
On June 1, the Draft Law on Industrial Secrets was published in the Boletín Oficial de las Cortes Generales. This text transposes and develops Directive 2016/943 of the European Parliament on the Protection of undisclosed technical knowledge and business information (trade secrets) and against its illicit collection, use and disclosure.
This future law aims to protect those elements of trade or industry that are outside of other forms of protection, because they are not considered inventions, because they are expressly excluded from patentability or because they do not adapt to the definitions of other modalities (topographies of semiconductors, plant varieties or intellectual property among others).
Up to date, in Spain, we find mention of the industrial secret in article 13 of the Law of Unfair Competition (LDC) and articles 278 and 279 of the Criminal Code (CP).
LDC pursues the disclosure and exploitation of an industrial or business secret, and the CP, the illegal acquisition, dissemination, disclosure, transfer or use of a business secret.
Therefore, the LDC and the CP recognize the right to exclusive use of secrets, and condemn – civil or even criminally – the unauthorized user.
However, unlike what happens in the field of, for example, patents, there is no public registry of secrets to consult and know, with certainty, the existing exclusive rights and their scope of protection.
The concept of secrecy is transferred to the sphere of the subject. In fact, the use of an independent creation is not considered to be an infraction even if it is identical to what is the object of the protected secret. On the contrary, such use is punishable when the user has had legitimate access, but with a duty to keep the secret, or illegitimately inducing the infringement to those who have an obligation to keep the secret, through espionage or through the robbery of media or documents among others.
It is therefore the matter of determining whether the user, when exploiting or disseminating what is considered an object of secrecy, was aware that this information was secret. However, in none of the rules (LCD and CP) the concept of industrial or business secret is defined, which generates insecurity for anyone who may want to use knowledge acquired during the provision of a service or a labor or commercial relationship.
The draft Law almost literally reflects the characteristics that, according to Directive 2016/943, must concur in an information to be considered an industrial or commercial secret.
These characteristics are:
- To be a secret, in the sense that,, it is not generally known by people belonging to the fields in which the type of information or knowledge in question is normally used, nor easily accessible to them;
- Having a business value, whether actual or potential, precisely because it is secret, and
- Have been subject to reasonable security measures by the owner to keep it secret.
We will have to wait, however, for the final text of the Law and the interpretation that Courts will give to each of these requirements, although we understand that given the European origin of these concepts we will find little vary from the interpretation that is given in comparative European law.
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