Activities of Julia REDA related to 2013/0402(COD)
Plenary speeches (2)
Protection of trade secrets against their unlawful acquisition, use and disclosure (A8-0199/2015 - Constance Le Grip) (vote)
Protection of trade secrets against their unlawful acquisition, use and disclosure (debate)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure PDF (1 MB) DOC (564 KB)
Amendments (35)
Amendment 40 #
Proposal for a directive
Recital 1
Recital 1
(1) Businesses and non- commercial research institutions invest in acquiring, developing and applying know-how and information, which is the currency of the knowledge economy. This investment in generating and applying intellectual capital determines their competitiveness in the market and therefore their returns to investment, which is the underlying motivation for business research and development. Businesses have recourse to different means to appropriate the results of their innovative activities when openness does not allow for the full exploitation of their research and innovation investments. Use of formal intellectual property rights such as patents, design rights or copyright is one of them. Another is to protect access and exploit the knowledge that is valuable to the entity and not widegenerally known. Such know-how and business information, that is undisclosed and intended to remain confidential is referred to as a trade secret. Businesses, irrespective of their size, value trade secrets as much as patents and other forms of intellectual property right and use confidentiality as a business and research innova among or readily accessible to persons that deal with the kind of information in question management tool, covering a diversified range of information, which extends beyond technological knowledge to commercial data such as information on customers and suppliers, business plans or market research and strategies. By protecting such a wide range ofd by other persons who might obtain economic value from its disclosure or use. Such know-how and commercialbusiness information, whether as a complement or as an alternative to intellectual property rights, trade secrets allow the creator to derive profit from his/her creation and innovations and therefore are particularly important for research and development and innovative performancethat is undisclosed and intended to remain confidential is referred to as a trade secret.
Amendment 44 #
Proposal for a directive
Recital 2
Recital 2
(2) Open innovation is a catalyst for new ideas to find their way to the market meeting the needs of consumers and tackling societal challenges. It is an important lever for the creation of new knowledge and underpins the emergence of new and innovative business models based on the use of co-created knowledge. Trade secrets have an important role in protecting the exchange of knowledge between businesses within and across the borders of the internal market in the context of research and development and innovation. Collaborative research, including cross- border cooperation, is particularly important to increase the levels of business research and development within the internal market. Open innovation is a catalyst for new ideas to find their way to the market meeting the needs of consumers and tackling societal challenges. In an internal market where barriers to such cross-border collaboration are minimised and where cooperation is not distorted, intellectual creation and innovation should encourage investment in innovative processes, services and products. Such an environment conducive to intellectual creation and innovation is also important for employment growth and improving competitiveness of the Union economy. Trade secrets are amongst the most used form of protection of intellectual creation and innovative know-how by businesses, yet they are at the same time the least protected by the existing Union legal frameworkSuch an environment conducive to intellectual creation and innovation and where employment mobility is ensured is also important for employment growth and improving competitiveness of the Union economy. Trade secrets have a role in protecting the exchange of knowledge between businesses within and across the borders of the internal market in the context of research and development and innovation. Nevertheless, the protection against their unlawful acquisition, use or disclosure by third partiesof trade secrets should not to be detrimental to innovation and employment mobility.
Amendment 45 #
Proposal for a directive
Recital 3
Recital 3
(3) Innovative bBusinesses are increasingly exposed to dishonest practices aiming at misappropriating trade secrets, such as theft, unauthorised copying, economic espionage, breach of confidentiality requirements, whether from within or from outside of the Union. Recent developments, such as globalisation, increased outsourcing, longer supply chains, increased use of information and communication technology. contribute to increasing the risk of those practices. The unlawful acquisition, use or disclosure of a trade secret compromises the legitimate trade secret holder’s abilityability of the person lawfully controlling the trade secret to obtain first mover returns using the outputs of its innovative efforts. Without effective and comparable legal means for defending trade secrets across the Union, incentives tobusinesses will be less secure when engage ing innovative cross-border activity within the internal market are undermined and trade secrets are unable to fulfil their potential as drivers of economic growth and jobs. Thus, innovation and creativity are discouraged and investment diminishes, affecting the smooth functioning of the internal market and undermining its growth enhancing potential collaboration with cross-border partners, which undermines the growth enhancing potential of the internal market.
Amendment 46 #
Proposal for a directive
Recital 4
Recital 4
(4) International efforts taken in the framework of the World Trade Organisation to address this problem led to the conclusion of tThe Agreement on trade-related aspects of intellectual property (the TRIPS Agreement). It contains, inter alia, provisions on the protection of trade secrets - referred to in the text as 'undisclosed information'- against their unlawful acquisition, use or disclosure by third parties, which are common international standards. All Member States, as well as the Union itself, are bound by this Agreement which was approved by Council Decision 94/800/EC5. __________________ 5 Council Decision of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986- 1994) (OJ L 336, 23.12.1994, p.1).
Amendment 47 #
Proposal for a directive
Recital 5
Recital 5
(5) Notwithstanding the TRIPS Agreement, tThere are important differences in the Member States legislation as regards the protection of trade secrets against their unlawful acquisition, use or disclosure by other persons. Thus, for example, not all Member States have adopted national definitions of trade secrets and/or unlawful acquisition, use or disclosure of a trade secret, so that the scope of protection is not readily accessible and differs throughout Member States. Furthermore, there is no consistency as regards the civil law remedies available in case of unlawful acquisition, use or disclosure of trade secrets as cease and desist orders are not always available in all Member States against third parties who are not competitors of the legitimate trade secret holder. Divergences also exist across the Member States with respect to the treatment of third parties who acquired the trade secret in good faith but subsequently come to learn, at the time of use, that their acquisition derived from a previous unlawful acquisition by another party.
Amendment 48 #
Proposal for a directive
Recital 7
Recital 7
(7) The differences in the legal protection of trade secrets provided for by the Member States imply that trade secrets do not enjoy an equivalent level of protection throughout the Union, thus leading to fragmentation of the internal market in this area and weakening the overall deterrent effect of the rules. The internal market is affected in so far as such differences lower businesses’' incentives to undertake innovative-related cross-border economic activity, including research or manufacturing cooperation with partners, outsourcing or investment in other Member States, which would depend on the use of the information protected as trade secrets. Cross-border network research and development as well as innovation-related activities, including related manufacturing and subsequent cross- border trade, are rendered less attractive and more difficult within the Union, thus also resulting in innovation-related inefficiencies at Union scale. In addition, higher business risk appears in Member States with comparatively lower levels of protection, where trade secrets may be stolen or otherwise unlawfully acquired more easily. This leads to inefficient allocation of capital to growth-enhancing innovation within the internal market because of the higher expenditure on protective measures to compensate for the insufficient legal protection in some Member States. It also favours the activity of unfair competitors who following the unlawful acquisition of trade secrets could spread resulting goods across the internal market. Legislative regime differences also facilitate the importation of goods from third countries into the Union through entry points with weaker protection, when the design, manufacturing or marketing of those goods rely on stolen or otherwisetrade secrets that have been proven to be stolen or unlawfully acquired trade secrets. On the whole, such differences create a prejudice to the proper functioning of the internal market.
Amendment 49 #
Proposal for a directive
Recital 7
Recital 7
(7) The differences in the legal protection of trade secrets provided for by the Member States imply that trade secrets do not enjoy an equivalent level of protection throughout the Union, thus leading to fragmentation of the internal market in this area and weakening the overall deterrent effect of the rules. The internal market is affected in so far as such differences lower businesses’' incentives to undertake innovative-related cross-border economic activity, including research or manufacturing cooperation with partners, outsourcing or investment in other Member States, which would depend on the use of the information protected as trade secrets. Cross-border network research and development as well as innovation-related activities, including related manufacturing and subsequent cross- border trade, are rendered less attractive and more difficult within the Union, thus also resulting in innovation-related inefficiencies at Union scale. In addition, higher business risk appears in Member States with comparatively lower levels of protection, where trade secrets may be stolen or otherwise unlawfully acquired more easily. This leads to inefficient allocation of capital to growth-enhancing innovation within the internal market because of the higher expenditure on protective measures to compensate for the insufficient legal protection in some Member States. It also favours the activity of unfair competitors who following the unlawful acquisition of trade secrets could spread resulting goods across the internal market. Legislative regime differences also facilitate the importation of goods from third countries into the Union through entry points with weaker protection, when the design, manufacturing or marketing of those goods rely on stolen or otherwisetrade secrets that have been proven to be stolen or unlawfully acquired trade secrets. On the whole, such differences create a prejudice to the proper functioning of the internal market.
Amendment 54 #
Proposal for a directive
Recital 8
Recital 8
(8) It is appropriate to provide for rules at Union level to approximate the national legislative systems so as to ensure a sufficient and consistent level of redress across the internal market in case of unlawful acquisition, use or disclosure of a trade secret. For this purpose, it is important to establish a homogenous definition of a trade secret without restricting the subject matter to be protected against misappropriation. Such definition should therefore be constructed as to cover business information, technological information an and undisclosed know-how where there is both a legitimate interest in keeping confidential, a commercial value of this information because it is kept confidential, and a legitimate expectation in the preservation of such confidentiality. By nature, such definition should exclude trivial information and should not extend to the knowledge and skills gained by employees in the normal course of their employment and which are known among or accessible to persons within the circles that normally deal with the kind of information in question, including competitors.
Amendment 56 #
Proposal for a directive
Recital 9
Recital 9
(9) It is also important to identify the circumstances under which legal protection is justified. For this reason, it is necessary to establish the conduct and practices which are to be regarded as unlawful acquisition, use or disclosure of a trade secret. Disclosure by Union’s institutions and bodies or national public authorities of business-related information they hold pursuant to the obligations of Regulation (EC) No 1049/2001 of the European Parliament and of the Council6 or to other rules on the access to documents should not be considered unlawful disclosure of a trade secret. Similarly, any information which disclosure, acquisition or use is required by Union or national rules or by public authorities should not fall within the scope of this Directive. Moreover, the disclosure, acquisition or use of information should not be considered unlawful when made in the purpose of the legitimate protection of the public interest, such as consumer protection, the protection of workers, the protection of human, animal or plant life, the protection of the environment and of urban environment, the safeguard of fundamental rights, including freedom of expression and information, the prevention of unfair competition. __________________ 6 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p.43).
Amendment 59 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
Amendment 64 #
Proposal for a directive
Recital 11
Recital 11
(11) In line with the principle of proportionality the measures and remedies intended to protect trade secrets should be tailored to meet the objective of a smooth functioning internal market for research and innovationincluding workers mobility, without jeopardising other objectives and principles of public interest, such as fundamental rights, consumer protection, health and environmental protection. In this respect, the measures and remedies ensure that competent judicial authorities account for the value of a trade secret, the seriousness of the conduct resulting in the unlawful acquisition, use or disclosure of the trade secret as well as the impact of such conduct. It should also be ensured that the competent judicial authorities are provided with the discretion to weigh up the interests of the parties to the litigation, as well as the interests of third parties including, where appropriate, consumers.
Amendment 67 #
Proposal for a directive
Recital 13
Recital 13
(13) In the interest of legal certainty and considering that legitimate trade secret holders are expected to exercise a duty of care as regards the preservation of the confidentiality of their valuable trade secrets and the monitoring of their use, it appears appropriate to restrict the possibility to initiate actions for the protection of trade secrets to a limited period following the date on which the trade secret holders became aware, or had reason to become aware, of the unlawful acquisition, use or disclosure of their trade secret by a third party. However, the protection against unlawful acquisition, disclosure and use of trade secrets should not restrict employees' mobility and become a burden in theird party efforts to find a job in the EU market. This needs to be taken into account when setting the limitation period to the measures, procedures and remedies provided for in this Directive: this period should therefore not exceed a year. The legal framework set out by this Directive shall aim to properly reflect the necessary to have a proper balance between the employees who create new ideas and the companies who provide the resources and the environment for the development of these ideas.
Amendment 69 #
Proposal for a directive
Recital 15
Recital 15
Amendment 71 #
Proposal for a directive
Recital 17
Recital 17
(17) A trade secret may be unlawfully used to design, manufacture or market goods, or components thereof, which may spread across the internal market, thus affecting the commercial interests of the trade secret holder and the functioning of the internal market. In those cases where unlawful acquisition has been demonstrated and when the trade secret in question has a significant impact on the quality, value or price of the resulting good or on reducing the cost, facilitating or speeding up its manufacturing or marketing processes, it is important to empower judicial authorities to order appropriate measures with a view to ensure that those goods are not put on the market or are removed from it. Considering the global nature of trade, it is also necessary that these measures include the prohibition of importing those goods into the Union or storing them for the purposes of offering or placing them on the market. Having regard to the principle of proportionality, corrective measures should not necessarily entail the destruction of the goods when other viable options are present, such as depriving the good of its infringing quality or the disposal of the goods outside the market, for example, by means of donations to by charitable organisations.
Amendment 74 #
Proposal for a directive
Recital 23
Recital 23
(23) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, notably the right to respect private and family life, the right to the protection of personal data, the freedom of expression and information, freedom of the press and the media, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to good administration, access to file and preservation of secrecy of business, the right to an effective remedy and to a fair trial and right of defence.
Amendment 76 #
Proposal for a directive
Recital 23 a (new)
Recital 23 a (new)
(23a) Member States shall respect freedom of the press and the media, according to Article 11(2) of the Charter of Fundamental Rights of the European Union in order to ensure that the Directive does not restrict journalistic works, in particular with regard to investigation, protection of sources, and the right of the public to be informed
Amendment 80 #
Proposal for a directive
Recital 27 a (new)
Recital 27 a (new)
(27a) The measures provided in the Directive and their implementation must not affect the application of the freedom of movement for workers and the freedom of establishment, in particular Articles 48 and 49 of the Treaty on the Functioning of the European Union and Article 15 of the Charter of Fundamental Rights of the European Union.
Amendment 83 #
Proposal for a directive
Recital 28
Recital 28
(28) The measures adopted to protect trade secrets against their unlawful acquisition, disclosure and use should not affect the application of any other relevant law in other areas including environmental liability, consumer protection, health and safety requirements, health protection, intellectual property rights, privacy, access to documents and information, and the law of contract. Trade secret protection should not affect a disclosure of software source code such as publication of software under the European Union Public License (EUPL) or compatible licenses. However, where the scope of application of Directive 2004/48/EC of the European Parliament and of the Council8 and the scope of this Directive overlap, this Directive takes precedence as lex specialis. __________________ 8 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L157, 30.4.2004, p.45).
Amendment 92 #
Proposal for a directive
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
Any information the disclosure of which is required by the Union or national rules or by public authorities within the context of their mandate shall not fall within the scope of this Directive
Amendment 95 #
Proposal for a directive
Article 1 – paragraph 1 b (new)
Article 1 – paragraph 1 b (new)
Member States may provide, in compliance with the provision of the Treaty for more precise definitions and rules and comprehensive description of lawful acquisition, use and disclosure of trade secrets provided that compliance with Articles 4, 5 ,6, 7, 8(1)2nd sub para, 8(3), 8(4), 9(2), 10, 12, 14(3) of this Directive is ensured.
Amendment 99 #
Proposal for a directive
Article 2 – point 1 – introductory part
Article 2 – point 1 – introductory part
(1) ‘trade secret’ means informationundisclosed know- how and business information bearing commercial value which meets all of the following requirements:
Amendment 102 #
Proposal for a directive
Article 2 – point 1 – point b
Article 2 – point 1 – point b
(b) has independent and significant commercial value because it is secret and because its disclosure will be significantly detrimental to the legitimate economic interest of the person lawfully controlling the trade secret;
Amendment 104 #
Proposal for a directive
Article 2 – point 1 – point c
Article 2 – point 1 – point c
(c) has been subject to reasonable and demonstrable steps under the circumstances, by the person lawfully in control of the information, to keep it secret. These reasonable steps shall be assessed by the competent judicial authorities on the basis, notably, of the legitimate use of technical and contractual means by the person lawfully in control of the information.
Amendment 113 #
Proposal for a directive
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
(3) ‘infringbreacher’ means any natural or legal person who has intentionally unlawfully acquired, used or disclosed trade secrets for purposes of commercial nature and in a manner contrary to honest commercial practices;
Amendment 115 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) ‘infringingunlawful goods’ means goods that are placed on the market whose design, quality, manufacturing process or marketing significantlyare demonstrated to benefits from trade secrets unlawfully acquired, used or disclosed.
Amendment 125 #
Proposal for a directive
Article 3 – paragraph 2 – introductory part
Article 3 – paragraph 2 – introductory part
2. The acquisition of a trade secret without the consent of the trade secret holder shall be considered unlawful whenever carried out intentionally with the aim of acquiring an economical gain or of causing economic harm to the person lawfully controlling it or with gross negligence by:
Amendment 131 #
Proposal for a directive
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(a) unauthorised access to or copy ofthe trade secret, which may include any documents, objects, materials, substances or electronic files containing the trade secret, lawfully under the control of the trade secret holder, containing the trade secret or from which the trade secret can be deducedholder;
Amendment 134 #
Proposal for a directive
Article 3 – paragraph 2 – point f
Article 3 – paragraph 2 – point f
Amendment 141 #
Proposal for a directive
Article 3 – paragraph 3 – introductory part
Article 3 – paragraph 3 – introductory part
3. The use or disclosure of a trade secret shall be considered unlawful whenever carried out, without the consent of the trade secret holder, intentionally and with the aim of acquiring an economic gain or advantage or of causing economic harm to the person lawfully controlling the trade secret or with gross negligence, by a person who is found to meet any of the following conditions:
Amendment 143 #
Proposal for a directive
Article 3 – paragraph 3 – point b
Article 3 – paragraph 3 – point b
(b) is in breach of a legally valid confidentiality agreement or any other dutyaccording to national and EU law to maintain secrecy of the trade secret;
Amendment 145 #
Proposal for a directive
Article 3 – paragraph 3 – point c
Article 3 – paragraph 3 – point c
(c) is in breach of a contractual or any otherlegally valid contractual duty to limit the use of the trade secret.
Amendment 153 #
Proposal for a directive
Article 4 – paragraph 1 – point a a (new)
Article 4 – paragraph 1 – point a a (new)
(aa) a commercial contract between the person who is legally in control of the trade secret and an acquirer;
Amendment 162 #
Proposal for a directive
Article 4 – paragraph 1 – point c
Article 4 – paragraph 1 – point c
(c) exercise of the right of workers or workers representatives to information and consultation in accordance with Union and national law and/or practices;
Amendment 163 #
Proposal for a directive
Article 4 – paragraph 1 – point c a (new)
Article 4 – paragraph 1 – point c a (new)
Amendment 170 #
Proposal for a directive
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
1a. The acquisition, use and disclosure of trade secrets shall be considered lawful if such acquisition, use or disclosure is required or authorised by Union or national law or within the mandate of public institutions.