Trade secrets are integral part of intellectual property of an organisation and they must be protected to the maximum possible extent. At times companies and business houses do not prefer to make their methods and strategy public and these methods and strategies are protected as trade secrets. Business houses have to make a trade off between protection of intellectual property rights like patents, trademark, copyright on the one hand and strategic advantage of the highly personal and advantageous information and knowledge on the other hand. It is not always beneficial to make your invention, method or business model public and get intellectual property protection for the same.
Companies and business houses that prefer to maintain trade secrets as an intellectual property have to go to great extents to protect their trade secrets. These days cyber criminals are targeting trade secrets of big organisations and business houses as a stolen trade mark can be sold at great price in national and international market. Cyber espionage has also significantly increased world over to steal trade secrets and intellectual property rights of big companies.
For instance, in the past Japanese company Kawasaki Heavy Industries (KHI) accused Chinese Company CSR Sifang of stealing its Shinkansen Bullet Trains. Japan had also alleged that technology and information from local companies, including chipmaker Toshiba, had been leaked to rivals from other countries. Japan has decided to fight against growing incidences of industrial cyber espionage. United States has also decided in the year 2013 to introduce a legislation that would target companies using stolen IPRs of U.S. Now in the year 2016 US has finally given a shape to a legislation that would protect trade secrets of US companies. Europe has also formulated a trade secret legislation to protect trade secrets of its member nations.
However, there are many techno legal challenges that nations and big companies need to address. Firstly, we need to address the problem of conflict of laws in cyberspace that is resulting in applicability of different laws for different situations. For instance, the recently expanded Rule 41 of US Federal Rules of Criminal Procedure is not binding upon India and other countries. This modified rule would not only violate the civil liberties and cyber laws of different countries but would also force other countries to speed up cyber warfare and cyber espionage race. Naturally, intellectual property rights and trade secrets would be on the receiving end.
Secondly, international legal issues of cyber attacks and cyber security are still required to be managed. Proving a cyber crime that involves multiple jurisdictions is a tedious task and it cannot be proved with certainty in all cases. Mutual cooperation and Mutual Legal Assistance Treaty (MLAT) are not helpful in most cyber crime cases having international ramifications. It is very important to resolve the authorship attribution dilemma so that guilt for a cyber crime can be imputed to a particular individual, nation or organisation.
Thirdly, cyber security issues are not easy to manage. Present day malware are defeating cyber security products with ease. There is little cyber security available to e-commerce companies and websites in different jurisdictions. In many jurisdictions, including India, cyber security breach disclosure norms are still missing. Thus, if an organisation or company is targeted for cyber attack and its systems are breaches, most of the times such organisation would not report such incidence to the government.
It is good that countries are working in the direction of protection of trade secrets but techno legal issues of trade secret laws cannot be ignored by them.