New Publication on the Directive proposal on harmonization of trade secrets by Tore Lunde

The article presents the European Commission´s  proposal for a Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure and discusses what impact the proposed directive may have on the protection of trade secrets in Norway in case the Directive will be adopted and implemented in the EEA Agreement. The Directive proposal is the first attempt to harmonize rules on trade secrets in the Member States of the European Union. In the author´s opinion, the draft Directive´s definition of ´trade secrets´ is in accordance with Norwegian law.

Article 4 (1) letter b clarifies that reverse engineering are legitimate means of acquiring information, however without using this term. In the author´s view, the Norwegian approach to reverse engineering is in line with the proposed Directive´s reverse engineering exception.

Article 7 introduces a procedural cut-off clause in the form of limitation periods for substantive claims, and for bringing actions for the application of measures, procedures and remedies provided for in the Directive. The duration of the limitation period shall not exceed six years. At first glance it seems as if Article 7 is less strict to trade secrets holders compared to the prevailing Norwegian legislation on limitation periods in claims. In any case the rules on limitation periods are rather complex, and it is likely that Article 7 represents a challenge to the prevailing Norwegian rules on limitation periods as regards trade secrets claims. 

According to Article 8, Member States shall ensure that the parties and any other person participating in the legal process shall not be permitted to use or disclose any trade secret or alleged trade secret of which they have become aware as a result of such participation or access. Even though the ideas formulated in Article 8 is in line with central principles in Norwegian civil procedure legislation, the author is of the opinion that it will be necessary to implement Article 8 in detail, by amending the civil procedure act (tvisteloven) or the courts of justice act (domstolsloven).

According to Article 13 (2) other elements than economic factors may be taken into account when setting the damages for unlawful acquisition, use and disclosure of trade secrets. This principle may be considered as a step towards a more lenient approach to award compensation for non-economic damages in new areas of law. In case the Directive will be adopted and implemented in the EEA Agreement, Norway will have to implement new legislation that opens up to take into account non-economic elements when setting the damages for unlawful acquisition, use and disclosure of trade secrets.