Home | Databases | WorldLII | Search | Feedback Edited Legal Collections Data

Graves, Charles Tait --- "Trade Secrecy and Common Law Confidentiality: The Problem of Multiple Regimes" [2011] ELECD 545; in Dreyfuss, C. Rochelle; Strandburg, J. Katherine (eds), "The Law and Theory of Trade Secrecy" (Edward Elgar Publishing, 2011)

Book Title: The Law and Theory of Trade Secrecy

Editor(s): Dreyfuss, C. Rochelle; Strandburg, J. Katherine

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208996

Section: Chapter 4

Section Title: Trade Secrecy and Common Law Confidentiality: The Problem of Multiple Regimes

Author(s): Graves, Charles Tait

Number of pages: 32

Extract:

4 Trade secrecy and common law
confidentiality: the problem of multiple
regimes
Charles Tait Graves*1


I. INTRODUCTION

Scholars and practitioners interested in analysing trade secret law at the
level of theory ­ that is, exploring its economic, social and philosophical
underpinnings in order to recommend policy objectives ­ face a serious
obstacle. Unlike patent or copyright law, which are unitary regimes gov-
erned by statutes and, ultimately, the Supreme Court, what we call `trade
secret law' is much more amorphous. As a result, it is sometimes difficult
to speak of trade secret law as a single body of law when analysing its
effects or offering policy proposals for reform.
The most important example is the definition of secrecy itself. Secrecy
is interpreted differently under different tort and contract claims, and
regulated differently under non-competition covenants. In some cases,
courts have recognized quasi-trade secret claims encompassing non-secret
information said to fall within some lesser, but still protectable, category
of information. In recent years, this question has come to the forefront as
courts have struggled to decide whether the Uniform Trade Secrets Act
pre-empts alternative tort formulations in favor of a single definition of
protectable information.
This chapter will explore how the theoretical discussion of trade secret
law is frustrated by the multiple regimes of confidentiality available in
most jurisdictions. Whether one's interest in trade secret law touches on
innovation policy, employee interests, or merely describing trade secret
law as a body of law subject to predictable results ...