La protection juridique des informations d'affaires : savoir-faire, renseignements non-divulgués, secrets d'affaires, secrets de fabrique, know-how et trade secrets
(2015)
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- Authors
- Supervisors
- Coppens, Philippe
- Abstract
- The subject of the thesis is to analyze the legal protection of business information. The first part of the thesis presents the reasons leading to exclude any form of ownership of business information while the second part details the legal mechanisms allowing a reservation of business information. In the first part, it is first observed that the law lacks of uniformity regarding the definition of the object of the protection. Several parallel and specific regimes applicable to certain categories of business information coexist under different names. In order to transcend these categories, a new global concept is proposed: the notion of business information defined as information useful for the operation of a business. It is then examined whether the business information can be the subject of a property right. This question is answered in the negative. The property rights being excluded, the question then arises whether the business information may or not be the subject of quasi-ownership, that is to say, a legal situation which is not a property right but which leads to a factual situation similar to that of the property. Here too a negative response is required. Being neither the subject of a property nor the subject of a quasi-property, the thesis shows that business information is a commons which is submitted to public freedoms. Two consequences follow from this. First, any legal regime applicable to business information must comply with certain limits imposed by its legal nature of commons. Furthermore, conflicts of public freedoms may arise between the person seeking to reserve the use of business information and the one who wants to freely use it. Such conflicts are frequent in the field of unfair competition and they have to be solved by balancing public freedoms. In the second part of the thesis, a particular category of business information is detailed: the trade secrets. Trade secrets are defined in many sources as secret, substantial and controlled information. These concepts are detailed to show that the only important criterion is the secrecy of the information. Then the contractual mechanisms to reserve the use of business information are analyzed. The weaknesses of these mechanisms are emphasized. The reservation of the business information in the context of unfair competition is also analyzed, giving rise to severe criticism of the theory of parasitic copying. Given the weaknesses of the mechanisms previously commented, the opportunity to create an intellectual property right on the business information is questioned. This issue is analyzed through the comment of the proposal of directive on trade secrets. This proposal does not seek to create an intellectual property right but a meta-intellectual property right, which gives rises to some critics. Finally, the conclusion emphasizes the need to maintain a balance between the availability of business information as a commons and the legitimate aspirations of some people to reserve the use of business information under certain limits.
- Affiliations
Citations
Cassiers, V. (2015). La protection juridique des informations d’affaires : savoir-faire, renseignements non-divulgués, secrets d’affaires, secrets de fabrique, know-how et trade secrets. https://hdl.handle.net/2078.5/53453