In the past decades, the legal status of the concept of know-how has been a subject of debate among scholars. Initially, it was not recognized as a genuine intellectual property right. However, it is now widely acknowledged as such by most international bodies and states, enjoying broad recognition and protection within the European Union.
From a historical perspective, the 1883 Paris Convention for the Protection of Industrial Property did not explicitly mention know-how or trade secrets as objects of intellectual property, sparking a debate on the matter. Some argued that know-how represents a form of intangible property, an asset subject to general property rules. Others put forth the thesis that the concept of know-how is integrated into intellectual property law. Over time, European norms fully embraced the latter viewpoint, considering know-how as a part of intellectual property law.
In today's business landscape, information holds immense value, serving as a driving force for innovation, expansion, and profitability. The issue of safeguarding this information is of paramount importance for businesses, irrespective of their size or industry.
Generally, the concept of know-how has been regarded as an integral component of the notion of trade secrets. If "know-how" is defined as a secret, substantial, and identifiable set of practical, non-patented information related to technology and business aspects, the term "trade secrets" encompasses a broader range of information, extending beyond technology to include strategic plans, client lists, and other commercial data.
For a significant duration, the concept of know-how lacked a consistent stance on its protection within the European Union. Some member states paid attention to the matter, while others entrusted it to the jurisdiction of courts and general legal provisions. Prior to the enactment of Directive No. 2016/943, the existence and definition of know-how were recognized at the European level through Commission Regulations No. 772/2004 and No. 330/2010. However, a closer examination reveals that these legal instruments proved inadequate in comparison to the significance of protecting know-how.
Recognizing the lack of legal consistency concerning the acknowledgment and safeguarding of the know-how concept, the European Union adopted Directive No. 2016/943 with the aim of standardizing the legal framework surrounding know-how and trade secrets. This directive extensively defines trade secrets, explicitly outlines the means, procedures, and remedies available to the injured party, and establishes specific criteria for evaluating trade secret infringements and assessing the resulting damages
Before the introduction of this directive, protecting know-how and trade secrets posed numerous challenges for their owners, including the absence of specific remedies, the intangible nature of trade secrets, and the difficulties in quantifying damages, among others. The directive effectively addressed many of these previously existing issues, providing a more robust legal framework to protect and enforce the rights associated with these valuable intellectual assets.
Another obstacle hindering the bestowal of legal protection pertains to the unique nature of know-how as an intellectual property right. The specific legal characteristics of know-how, as well as trade secrets in general, render them complex subjects for intellectual property protection. It is essential to note that legal protection is not granted directly to the knowledge comprising know-how but is instead focused on preventing its unlawful acquisition, dissemination, or other illegitimate means of procurement. In contrast to other forms of intellectual property rights, the owner of know-how or trade secrets does not possess an exclusive right to these assets.
The information that constitutes know-how does not inherently enjoy protection. It is not subject to copyright or patent protection, and the possibility of independent and legal discovery of the same know-how remains viable. Unlike more traditional intellectual property rights, know-how relies on safeguarding the secrecy and confidentiality of the information, rather than establishing exclusive ownership rights. This distinctive nature of know-how further underscores the complexity and nuances involved in its legal protection.
As such, the directive explicitly outlines exemptions tailored to the unique nature of trade secrets. In Article 1, Paragraph 2, the directive states exemptions in broad terms, ensuring the preservation of essential principles such as Preservation of Freedom of Expression, Public Interest Disclosure, Disclosure in Compliance with Obligations and Protection of Social Partners.
Furthermore, in Article 3, Paragraph 1, the directive defines lawful acquisition of a trade secret by specifying that it may occur through various means, including independent discovery or creation, observation of publicly available products, the exercise of workers' rights to information and consultation, and other practices conforming to honest commercial standards.
Article 5 of the Directive strengthens these exemptions by explicitly mandating that Member States are obligated to reject any application of the Directive when it involves the exercise of freedom of expression and information, the protection of legitimate interests, the disclosure of illegal activity in the interest of public welfare, or when workers disclose trade secrets to their representatives in compliance with the law
As a direct consequence of this, independent discovery and creation, along with reverse-engineering, continue to stand as legitimate means for individuals or organizations seeking to acquire know-how or trade secrets within the bounds of the law.
The Directive effectively strikes a balance between the unique characteristics of the know-how concept and the necessity for legal protection within the European landscape. It provides valuable assistance to organizations in safeguarding their intangible assets, which are integral to their competitiveness in the market.
Taken as a whole, these legal developments translate into a comprehensive level of protection for innovation and inventiveness in the business sector throughout Europe. The mechanisms established by the directive provide organizations with a significantly more stable and legally secure environment in which to conduct their activities.
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