Law of Protection Business Information Critique

Law of Protection Business Information Critique A critique of the extent of implementing the law of protection business information in Europe and the U.S. Introduction Stealing secretive business information and economic espionages as a result of globalization reveals an increase in the involvement of many commercial blocks to protect business ideas, through a litigation process. Regional economic blocks such as the jurisdiction of the European Union through its Commission as well as the U.S. have increased an extent of laws, from the roots of the international law provisions, so that it can protect the business firms in their jurisdictions from the vices. An important thing to note is that business information regarding the intellectual properties is critical in the center for this discussion through four key areas namely the copyright issues, trademark issues, trade secrets and patent issues. Many of the states in the case study regions have come up with various pieces of law as well as definitions of the trade secrets that they protect which is enforceable throughout the world. The process that enables application of such laws involves the provisions by international treats which might lead to contractual agreements or guide multilateral and bilateral relations between states. Global bodies whose conventions are legally binding such as the United Nations also come up with regulations which, particularly, for the case, protect the way of business information and also trade secrets through the assent by signature to that body. The process of globalization makes many nations to realize the many problems that all states share. However, the capabilities and foreign policy elements of various jurisdictions are not equal. Also, if some of the nations decide to address the problems alone, they may not be able to come up with ways of protecting their citizens or firms in an international platform without the help of the rules guiding the relations between various states. Therefore, it is important that there are not only global bodies present for international protection but also institutions such as the legal departments that come up with the legislations. They should also be able to enforce it through statutory provisions in the conventions signed by parties on a voluntary basis. Ideally, no particular enforcement agency or body is independent in enforcing the laws but only possible with the help of the treaties. Some of the departments are given the directive to undertake certain duties for the purpose of prot ection of the states and their citizens against particular threats. In this case, theft and economic espionage have been on the rise prompting many nations to come up with the laws to protect firms and businesses from this global threat. With the increase in technology, some of the thefts take place even through online systems, such as cyber attacks, which might retrieve the nature of trade secrets regarding the nature of individual strategies of business operations to a particular company and use it for unfair competitive practices. The United Nations conventions also have the specific legislature which addresses this issue and which guides the formulation of constitutional laws by individual countries, to protect the trade secrets at an international level. The paper focuses on the nature and security of the business information, and trade secrets concerning the United States and Europe regarding nature and extent of which the particular countries involve their legal obligations in protecting companies from economic espionage and theft in a global market. Also, the paper will establish whether the recent increase in the litigation process to protect companies from the vices is as a result of the increasing number of the violation of the trade secrets law. The supportive arguments for this study will arise through the survey on the pieces of legislation by the case study countries. The focus is on how they utilize international law and the development of local legislations to guide the nature of business practice, protection of information and enhance fair competition amongst companies that face the threat of stealing trade secrets for their befit. Also, through concentration on the elements of intellectual property, the study will also involve the laws as well as the legal consequences of the violations of the provisions in each of the individual jurisdiction to establish the extent and seriousness of this problem. The purpose is to prove that the blocks are addressing the protection of trade secrets not only to their jurisdiction but also on the internationalization of business. The structure of this paper will involve the discourse on the definitions of the firm secrets by various laws and critical analysis, and assessment of the historical evolution of this principle at the international level. Also, it will conceptualize the law of trade secrets and a discussion of the legal complexities that surround its implementation. Further, the paper will look into the extent of application of the trade secrets principle while discussing the philosophies of intellectual property law in the individual jurisdictions. Lastly, the discussion will give examples of pro-plaintiff and pro-defendant cases as a trend arising from the implementation of trade secrets principle in the United States and Europe jurisdictions. Definitions of trade secrets under international laws and their historical evolutions Firstly, the treaties between states and the international laws are binding on member states due to the ratification and implementation of the Vienna Convention on the law of treaties of 1969[1].The law guides the nature of international relations and in particular contributes largely to the sources of international law in which, its violation has consequences and can be in prosecution in the international court of justice. The treaties also observe the principles of the litigation at a global level such the equal rights and self-determination by the United Nations, which ensures that the sovereignty of all states is equal despite the economic or development differences. On this realization, most of the definitions of trade secrets in the international level arise from such treaties that are binding on all members states in equal measure, especially the rules guiding the nature of conducting trade between countries. In particular, the membership of countries to the WTO is the foundation on the conventions. As an international body, therefore, special rules have to guide the relations of conducting trade between states and also fair practices that will enhance the peaceful relationship within countries. The ratification of the laws by the world trade organizations is as a result of the deliberations of member states regarding emerging problems such theft of trade secrets and economic espionage. Also, it involves coming up with a treaty containing pieces of law with the aid of legal experts that members debate on and agree to it for the purpose of its implementation. The first explanation of the principle by the WTO refers to the perspective through Trade-Related Aspects of Intellectual Property Rights (TRIPS) which views the principle to be commercial and private data that are uniquely applicable to the particular company[2].The law is in consideration as the first one to protect trade secrets at the international level through protecting undisclosed business information regarding copyrights, trademarks of firms, the patents issues and the trade secrets that may result in unfair competitions of businesses. Another important agreement that will also help define the trade secrets and constitute to its historical evolution in the international scene is the Paris Convention for the Protection of Industrial Property by the World Intellectual Property Organizations[3]. Defining trade secrets is similar among many countries which agree that the protection of this principle should have a practical value. In this case, it should involve the stakeholders of the organization and not an individual. They should not be made known to the public. Section seven of TRIPS in one of the articles by WTO outlines not only the law of protecting undisclosed information by business but also its definition. One of the definitions under this treaty by states that are members of WTO addresses the secrecy of the information. The provisions describe the protected information must be secret though the vice is not obsolete. In particular, an owner of a business can reveal the secrets to the firm partners and employee, but the information should not be readily available to the public. Also, those with the secrets should keep them that way on avoiding giving the knowledge to the public. The second aspect is the commercial value of the trade secrets. According to the agreement of TRIPS, private business information is a set of ideas about a business that has a massive market segment, and the protection of the information is to prevent the commercial information from other competing companies that may try to derive the utility out of the trade secrets. Lastly, the definition could be as a result of maintaining secrets using efforts that are reasonable. In this case, the law defines trade secrets as those who fulfill the energy requirement by company owners in protecting their information. The protection of the secret is due to reasons beyond such efforts by an individual that have to be reasonable. Some of the reasonable efforts according to the law, therefore, refer to common law in various countries requiring contractual agreements between the company and employees on the secrecy as well as the confidentiality notices so that the law could be able to protect the information. In an international scene, this consists of the efforts by the companies especially the multinational ones as well as the states of being reasonable and resulting to security provision of the business ideas. In the above definitions by the treaty, it does not offer the civil defense, especially to the technical information protection since it tends to only focus on the commercial perspective of the information. Also, the law does not protect the use information that might be confidential to a company that gets out to the public through fair means in the regular course of competitions primarily technical information such industrial designs. According to the TRIPS, the members of WTO, besides the obligation of the institution to protect commercial and confidential information, individual countries should place national systems to safeguard the businesses under their jurisdictions. However the failure of the treaty to set the standards or extent of the protection, the protection rights have the substantial variation which may even hinder internationalization of business. Some of the examples of such hindrances are the breaches of contract and acquisitions by third parties as a result of mis appropriation that differ across economic blocks around the world[4]. Articles 1 and 10bis of the Paris conventions regarding the industrial property protection is also about the TRIPS agreements as part of the scope of protecting trade secrets. In the article of the Paris conventions, for example, it outlines the requirement of a union in the member states for offering safety to the ownerships of valuable data to be in application. According to the section, the trade secrets include the object patents, industrial designs, trade names, and trademarks, as well as the models of the utility whose sharing with other people apart from the original innovators, may result in unfair practices in the competitive environment. On the other hand, Article 10bis of the same convention also indicates forms of unfair practices and the protection of the trade secrets from this threat. In particular, this law requires that the individual countries of the union should protect their citizens from the threat by legislating against unfair practices, confusion, false allegat ions or indications of misleading the public. The process concerns the nature of activities of the industrial use of products across all economic sectors[5]. Therefore the article addresses the protection of information from the view that trade secrets involve only the intellectual property. The convention also compliments the arguments by the TRIPS regarding the fact that apart from the provisions of the agreements, there is a need for the individual states also to establish national laws. The legislations enhance the protection of property for the business especially the ones protecting the theft of information that could lead to unfair completion if in the hand of competitors. Lastly, in addition to the protection of commercial and confidential information, this convention also gives consideration to technical information which is more critical and the one that builds brands of companies such as the Walmart retail businesses and Apple technologies among other big companies with a unique innovation and presence in the world. Conceptualization of trade secrets law Different states have different opinions regarding the premises of the legislation on providing protection to business concepts at risk. For example, to Europe, an English law on trade secrets is on the assumption breach of confidence regarding the trade secrecy. In the U.S., the premise of the protection law company secrecy is through protection of the business information. Some scholars do argue that no unified theory explains the trade secrets law but however recognizes that it is a collection of norms as well as approaches that offer protection to business information. Therefore, the normative and conceptual ideas indicate that the definition of property extends beyond the actual ownerships to include products as a result of innovation and forms of labor. Also, the rise in the global concern over the issue reveals that the need for protection of this kind of information is critical in enhancing the relations between states. Though other people may view trade secrets as not being property, the future developments of law that protect their rights facilitate the concept that the characteristics of the business information meet the ownership status. The concept goes even further through law provisions in some of the jurisdictions to indicate the fact that the supply of such rights constitutes a duty. For example in the US, the protection of this nature of business property through rights implies that the information has the potential of compensation under the federal constitution. On the other hand, European nations do not consider information as property but instead provide procedures and solutions to facilitate the claims of intellectual properties. Examples of such laws in the European states include the economics and trade secrets law. Therefore, there is the existence of the concept of trade secrecy among many nations. The was increasing efforts through conventions, as well as national legislation in individual states, shows the global concern of the consistent trait of the abuse of property rights under the law of various jurisdictions. The underlying reason, such as the increasing economic espionage cases and the efforts by the governments concern to respond to adverse effects of theft of business information that is confidential, shows that the concept exists. Besides, the consistent nature towards the traits through the consequences of globalization identifies the duty of the international bodies to come up with legally binding agreements. They protect companies from the character of this threat clearly shows the emergence of the concepts as well as the trend of the risk that changes with both levels of technology and internationalization of businesses which also require continued efforts of revising the law t o protect the ideation of the businesses from theft. Underlying philosophies of law on intangibles The discussions around trade secrets in most cases tend to involve the concept of copyright protection. Therefore, it is essential to understand the nature of the concept as well as the underlying principle to enhance the later discussion concerning the extent to which both the United States of America and Europe apply the law of trade secrets in their respective jurisdictions. Also, the basis of the case laws that show the pro-plaintiff and the pro-defendant is this concept especially after the implementation of particular laws in the region as a global trend today. Intellectual property refers to the inventions, creative works, and use of symbols, names or images that identify with a particular company for commercial purposes. On this basis, the intellectual property could be divided into industry ownership and copyright issues. Some of the problems associated with industrial properties include trademarks designs and geographical indications. On the other hand, copyright involves writings and artistic works, and architectural drawings. In some cases, performing artists such as singers have specific rights which relate to copyrighting. The same applies to recordings by both radio broadcasts and television programs among other examples that copyright their material to prevent other people from using the information without their permission which in most cases involve attaching a commercial value for the usage of the products. The intellectual property rights include the allowance of individuals as well as companies with unique information to benefit from their work or ideas regarding the commercial use of their products. Some universal treaties, such as the universal declaration of human rights in Article 27 outline some of these rights[6]. Also, apart from the Paris Convention for the protection of industrial property in the earlier discourse, the Berne Convention for the Protection of Literary and Artistic Works of 1886 by the World Intellectual Property Organization (WIPO) also provides some of the rights[7]. Such incidences of protection of the kind of properties indicate that there are significant reasons why the world organizations should legislate to protect trade secrets. One of the reasons is that legal protection, especially to new creations in culture and technology, encourages many companies to come up with supportive measures such as additional resources for new products that will improve hum anity. Also, through this protection, the countries could experience faster economic growth, higher quality of life as well as opening up of the employment opportunities. Therefore, the protection creates a level of the interest of people with the idea and also the citizen concerns that many states serve. The occurrence of common problems through the globe also require the efforts of agreements such as through the convention to help protect the common international interests of member states since the occurrence of some of the problems such theft of information has no boundaries. Patents offer exclusive rights to inventions or technical solutions towards particular problems in most cases up to twenty years. They are necessary to provide incentives to the investors as recognition of their creativity and innovation. Patents offer protection that prevents the information from commercial production, distribution or use without consent from the owner. In this scenario, the courts enforce the protection of these rights. A patent holder could, therefore, have the exclusive right to give the information to anyone of their choice with particular confidential requirements of not sharing. Once the period expires, then the information can be free for use by the public. A trademark refers to a unique sign that is in the identification of a particular type of product.ÂÂ   The clients using the product have a relation with that particular sign. Other companies may try to copy the trademark as the way to create confusion within the customers and therefore, have an opportunity to make some of the clients to buy their products that result in unfair competition practices. Trademark protection, therefore, ensures that the owners have the rights of using the mark exclusively as a brand of their products. The courts determination also enforces the legal complexities surrounding the issues. They promote the recognition and financial gains by individuals or enterprises. They can consist of drawings, symbols, or numerical having distinguishing features. The registration of the trademarks is widespread in many countries, but however, in most cases, the impact of the brands might be restricted to the individual countries. A geographical indication is a particular location in which the product originates due to its reputation due to the place. For example, Arabian coffee or electrical appliances manufactured by the United Kingdom among others indicate that the location of that production is significant for the usage of the product. Some people might locally produce or make the products that constitute limitations for financial gain and unfair competition practices aimed at only making the profit using another companys geographical indicator. Some of the valuable reputations are vulnerable to misuse and are interpretation hence the need to protect them. In most cases, the protection is through national laws under other provisions of the law on rights. Also, WIPO through international agreements such as the Lisbon agreement and other meetings that allow member states to enhance international protection. The last one involves the copyrights where the owner of such rights can be able to prohibit or permit the use of their information that is of their originality. The examples of these applications may include a reproduction of content, public performance, broadcasting, language translation or adoption to other forms with the consent of the owner. The law applies to right from the production, distribution and to the end user of the products. The economic rights regarding the copyrights also allow companies to purchase some of the rights or give compensation for the use of the content by an individual or business such as through partnerships. In most cases, the nature of this relationship is through the directive of contractual agreements for enforcement by law[8]. The protection of the copyright rights enhances creativity and innovation. However, with the increasing technological advancement, some of the materials may be readily available through online platforms. Organizations such as the WIPO through the WIPO Copyright Treaty (WCI) also provide the rights[9]. Also, the WIPO Performances and Phonograms Treaty (WPPT) provide the rights of using creative workers over the internet to as to protect the copyright of the owner regarding usability and economic compensations[10]. Critique of the extent of business information law in Europe Recently, protecting business ideas in Europe has made progress of legislative developments as a result of the involvement of the European Commission and ratification by the European Parliament. One of the major, legal arsenals of the industrial players in Europe is the use of patent law to protect their technology. Reports reveal concerns that the laws are not sufficient to address the problem of industrial espionage in the technological fields. In particular, the issue discusses the threat of leaking such information through former workers in companies, contractors or the other third parties. The legal complexities that both the industrial players and the European Union involve in are due to two primary reasons. The first reason is that recognition of the need to protect the trade secrets will help increase the levels of innovation in Europe and allow it to compete in an efficient manner with other jurisdictions having more protection such as the United States. The second reason is to provide a response to the increasing cases of stealing of technology within European businesses. One of the litigation to enhance the national laws is to strengthen the proposed directive which aims at breaching the gap through harmonization of existing laws. There is need to review the company laws will also help in increasing the research and development activities by balancing the leveling of the trade secret protection throughout the Europe countries to reach the same levels[11]. The formulation process is careful to ensure fair competition between various companies and the issue regarding the freedom of workers and their mobility in implementing it. Also, the legislation has to put into consideration the avoidance of restricting the independent contractors. The reasons include the fact that the scope of protection that goes beyond patent rights only and that trade secret do not only involve technological products but information with commercial value too. The need for the new legislation is the increase in the theft through digital platforms involving activities such as cyber-attacks that might potentially disclose the confidential information to the particular regarding a particular company. As a result, a report by European Commission study on secrecy off information of companies shows the use of the protection of the company secrets across all the European countries. Lastly, the definition of trade secrets as the know-how through the European Commission Technology Transfer Block Exemption Regulation (TTBER) also requires review to widen the definition scope[12]. According to Article 1.1(i) of TTBER, trade secrets are not known or accessible, have strong use in production and contractual activities and not easily identified. Therefore, through the implementation of the litigation content, the nature of business practice will involve fairness, and positive development through better protection of the trade secrets. Critique of the extent of trade secrets in the US The United States is one of the most advanced countries regarding the protection of trade secrets through the international law application, the federal law and lastly the state law. In the US, the trade secret refers to confidential information that is also commercial which gives a substantial competitive advantage[13]. Some of the trade secrets include customer lists, marketing strategies, and pricing information. One of such secrets is the Coca-Cola formula for its products. Today, the trade secrets are increasingly becoming among the most significant valuable assets that are not tangible. The theft of these trade secrets leads to massive losses especially by the American firms to leaks by employees, foreign governments and lastly through corporate competitions. Most of the theft occurs through cyber-attacks, advanced technology, and communication devices which increase anonymity of the individuals or organizations behind the vice. In the United States, protecting information on companies lies in the jurisdiction regarding the law of states. However, the other elements such as patent information, trademarks and copyrights are a responsibility of the federal law. According to the state law, the owners of a trade secret could file lawsuits against the known individuals that misappropriate such information. In the federal law, statutes such as the Economic Espionage Act (EEA) 1996 many also protect through prosecution, in particular, a situation where the confidential information many benefit another foreign state, instruments or agent[14]. In a case where the information is for use in interstates, the law also applies in ensuring that the owner of that kind of information gets protected from the usage of that information without their consent. According to this law, the attorney general has a legal duty to bring to a civil action or obtain an injunction that is against any violation. However, it is difficult for the federal government to adequately protect the trade secrets whose owners are the US citizens. The reason is that the US department of justice, as well as the federal bureau of investigation, has less power regarding the enforcement of the law on violations of trade secrets. In particular, their investigative and prosecution duty is not in facilitation with the provisions of the law. However, through urging the Congress to adopt a more elaborate law including the federal trade secret law that is uniform across the states, it will allow dealing more effectively the problem of stealing trade secrets. The process could help most of the companies in the US to seek injunctions relief as well as the monetary benefit especially in cases in violating theft of the business information as well as assets. One of the legislations in the 114th Congress that will give the power of private action to the federal government includes the Defend Trade Secrets Act (DTSA) (H.R. 3326 and S. 1890)[15].ÂÂ   The process is through a substitute amendment to the statute through the house senate judiciary committee in early 2016. The Uniform Trade Secrets Act (UTSA) of 1979 is the first effort by law through the National Conference of Commissioners on uniform state law before the effort by the federal government of the espionage act[16]. Regarding the state laws, the law of the common torts applies for cases involving misappropriation. The UTSA helps through consolidating the universal laws that Forty-seven states have adopted. The Senate Judiciary Committee continues to increase in the application of procedural and substantive standards towards protection of trade secrets. Enforceable laws under the federal government that will protect secrecy of the ideas of business the Trade Secrets Act and the Economic Espionage Act[17]. The first one involves a warning to government officials not to disclose information that is confidential as well as trade secrets enacted in 1948. The consequences could lead to removal from office. On the other hand, the Economic Espionage Act of 1996 is to address increasing threats to the US businesses hence the scheme to protect trade secrets. The act involves two offenses which include stealing business data to make gains to another states organization or individual and also the trade secret theft for a financial benefit of another party. Lastly, through the international law, the United States offers a more elaborate legal protection of the trade secrets. The US complies with the provisions of TRIPS as well as the provisions of the WTO[18]. Also, through provisions of other bilateral or multilateral Free Trade Agreements (FTAs) are significant in the protection of the intellectual property through the delivery of TRIPS agreement[19]. Pro-Plaintiff or Pro-Defendant Trends Arising From the Implementati