Hardback
The Law and Theory of Trade Secrecy
A Handbook of Contemporary Research
9781847208996 Edward Elgar Publishing
This timely Handbook marks a major shift in innovation studies, moving the focus of attention from the standard intellectual property regimes of copyright, patent, and trademark, to an exploration of trade secrecy and the laws governing know-how, tacit knowledge, and confidential relationships.
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Critical Acclaim
Contributors
Contents
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This timely Handbook marks a major shift in innovation studies, moving the focus of attention from the standard intellectual property regimes of copyright, patent, and trademark, to an exploration of trade secrecy and the laws governing know-how, tacit knowledge, and confidential relationships.
The editors introduce the long tradition of trade secrecy protection and its emerging importance as a focus of scholarly inquiry. The book then presents theoretical, doctrinal, and comparative considerations of the foundations of trade secrecy, before moving on to study the impact of trade secrecy regimes on innovation and on other social values. Coverage includes topics such as sharing norms, expressive interests, culture, politics, competition, health, and the environment.
This important Handbook offers the first modern exploration of trade secrecy law and will strongly appeal to intellectual property academics, and to students and lawyers practicing in the intellectual property area. Professors in competition law, constitutional law, and environmental law will also find much to interest them in this book, as will innovation theorists.
The editors introduce the long tradition of trade secrecy protection and its emerging importance as a focus of scholarly inquiry. The book then presents theoretical, doctrinal, and comparative considerations of the foundations of trade secrecy, before moving on to study the impact of trade secrecy regimes on innovation and on other social values. Coverage includes topics such as sharing norms, expressive interests, culture, politics, competition, health, and the environment.
This important Handbook offers the first modern exploration of trade secrecy law and will strongly appeal to intellectual property academics, and to students and lawyers practicing in the intellectual property area. Professors in competition law, constitutional law, and environmental law will also find much to interest them in this book, as will innovation theorists.
Critical Acclaim
‘Rochelle Dreyfuss and Kathy Strandburg have assembled a star-studded cast of contributors for this new and welcome volume. Good academic works about trade secret law have been about as elusive as trade secrets themselves. This volume offers a wonderful contribution to the literature, and will certainly inspire much-needed further research in the area, both in the U.S. and elsewhere.’
– Mark Janis, Indiana University, US
‘Trade secret law is often seen as the “Cinderella” of intellectual property law, at least by scholars. But it is hugely important. This volume shows why. Trade secret law provides a window into so many areas of legal thought, and implicates a wide array of public policies. The editors have brought together a diverse set of challenging contributions, which highlight this breadth. Drawing on theory, history, and doctrine, collectively they comprise one of the most wide-ranging and provocative treatments of the field. The volume not only is essential reading for scholars tackling the role of trade secrets in our economy, but also offers important insights for anyone interested in intellectual property law more generally.’
– Graeme B. Dinwoodie, University of Oxford, UK
– Mark Janis, Indiana University, US
‘Trade secret law is often seen as the “Cinderella” of intellectual property law, at least by scholars. But it is hugely important. This volume shows why. Trade secret law provides a window into so many areas of legal thought, and implicates a wide array of public policies. The editors have brought together a diverse set of challenging contributions, which highlight this breadth. Drawing on theory, history, and doctrine, collectively they comprise one of the most wide-ranging and provocative treatments of the field. The volume not only is essential reading for scholars tackling the role of trade secrets in our economy, but also offers important insights for anyone interested in intellectual property law more generally.’
– Graeme B. Dinwoodie, University of Oxford, UK
Contributors
Contributors: R.G. Bone, C.M. Correa, R. Denicola, R.C. Dreyfuss, R.S. Eisenberg, V. Falce, H. First, J.C. Fromer, G. Ghidini, C.T. Graves, M.A. Lemley, D.S. Levine, D.E. Long, M.L. Lyndon, M.J. Madison, F. Pasquale, J.H. Reichman, M. Risch, P. Samuelson, S.K. Sandeen, K.J. Strandburg, G. Van Overwalle, E. von Hippel, G. von Krogh, D.L. Zimmerman
Contents
Contents:
Introduction
Rochelle C. Dreyfuss and Katherine J. Strandburg
PART I: FOUNDATIONS
1. Trade Secrecy in Willy Wonka’s Chocolate Factory
Jeanne C. Fromer
2. The Restatements, the Uniform Act and the Status of American Trade Secret Law
Robert Denicola
3. Trade Secrecy, Innovation and the Requirement of Reasonable Secrecy Precautions
Robert G. Bone
4. Trade Secrecy and Common Law Confidentiality: The Problem of Multiple Regimes
Charles Tait Graves
5. The Surprising Virtues of Treating Trade Secrets as IP Rights
Mark A. Lemley
6. Trade Secrets as Intellectual Property Rights: A Disgraceful Upgrading – Notes on an Italian ‘Reform’
Gustavo Ghidini and Valeria Falce
7. Trade Secret Law and Information Development Incentives
Michael Risch
PART II: SECRECY AND SHARING
8. How Trade Secrecy Law Generates a Natural Semicommons of Innovative Know-how
Jerome H. Reichman
9. Open Innovation and the Private-collective Model for Innovation Incentives
Eric von Hippel and Georg von Krogh
10. Open Secrets
Michael J. Madison
11. Uncorking Trade Secrets: Sparking the Interaction between Trade Secrecy and Open Biotechnology
Geertrui Van Overwalle
PART III: IMPACT ON OTHER PUBLIC POLICY ARENAS
12. First Amendment Defenses in Trade Secrecy Cases
Pamela Samuelson
13. Trade Secrets and the ‘Philosophy’ of Copyright: A Case of Culture Crash
Diane Leenheer Zimmerman
14. Trade Secrets and Antitrust Law
Harry First
15. The Troubling Consequences of Trade Secret Protection of Search Engine Rankings
Frank Pasquale
16. The Impact of Trade Secrecy on Public Transparency
David S. Levine
17. Trade Secrets and Information Access in Environmental Law
Mary L. Lyndon
18. Data Secrecy in the Age of Regulatory Exclusivity
Rebecca S. Eisenberg
PART IV: INTERNATIONAL ISSUES
19. Trade Secrets and Traditional Knowledge: Strengthening International Protection of Indigenous Innovation
Doris Estelle Long
20. The Limits of Trade Secret Law: Article 39 of the TRIPS Agreement and the Uniform Trade Secrets Act on which it is Based
Sharon K. Sandeen
21. Test Data Protection: Rights Conferred Under the TRIPS Agreement and Some Effects of TRIPS-plus Standards
Carlos M. Correa
Index
Introduction
Rochelle C. Dreyfuss and Katherine J. Strandburg
PART I: FOUNDATIONS
1. Trade Secrecy in Willy Wonka’s Chocolate Factory
Jeanne C. Fromer
2. The Restatements, the Uniform Act and the Status of American Trade Secret Law
Robert Denicola
3. Trade Secrecy, Innovation and the Requirement of Reasonable Secrecy Precautions
Robert G. Bone
4. Trade Secrecy and Common Law Confidentiality: The Problem of Multiple Regimes
Charles Tait Graves
5. The Surprising Virtues of Treating Trade Secrets as IP Rights
Mark A. Lemley
6. Trade Secrets as Intellectual Property Rights: A Disgraceful Upgrading – Notes on an Italian ‘Reform’
Gustavo Ghidini and Valeria Falce
7. Trade Secret Law and Information Development Incentives
Michael Risch
PART II: SECRECY AND SHARING
8. How Trade Secrecy Law Generates a Natural Semicommons of Innovative Know-how
Jerome H. Reichman
9. Open Innovation and the Private-collective Model for Innovation Incentives
Eric von Hippel and Georg von Krogh
10. Open Secrets
Michael J. Madison
11. Uncorking Trade Secrets: Sparking the Interaction between Trade Secrecy and Open Biotechnology
Geertrui Van Overwalle
PART III: IMPACT ON OTHER PUBLIC POLICY ARENAS
12. First Amendment Defenses in Trade Secrecy Cases
Pamela Samuelson
13. Trade Secrets and the ‘Philosophy’ of Copyright: A Case of Culture Crash
Diane Leenheer Zimmerman
14. Trade Secrets and Antitrust Law
Harry First
15. The Troubling Consequences of Trade Secret Protection of Search Engine Rankings
Frank Pasquale
16. The Impact of Trade Secrecy on Public Transparency
David S. Levine
17. Trade Secrets and Information Access in Environmental Law
Mary L. Lyndon
18. Data Secrecy in the Age of Regulatory Exclusivity
Rebecca S. Eisenberg
PART IV: INTERNATIONAL ISSUES
19. Trade Secrets and Traditional Knowledge: Strengthening International Protection of Indigenous Innovation
Doris Estelle Long
20. The Limits of Trade Secret Law: Article 39 of the TRIPS Agreement and the Uniform Trade Secrets Act on which it is Based
Sharon K. Sandeen
21. Test Data Protection: Rights Conferred Under the TRIPS Agreement and Some Effects of TRIPS-plus Standards
Carlos M. Correa
Index
