Domestic and Global Contexts
Elgar Law and Entrepreneurship series
Edited by Lynda J. Oswald and Marisa Anne Pagnattaro
Chapter 3: Contracts for knowledge protection across a global workforce
The complications and opportunities for firms operating in a globalized economy have been exhaustively catalogued in the last few decades. Increasingly there has been scholarly discussion of the complex issues surrounding the unwanted transfer of proprietary knowledge and trade secrets across borders that provides an unfair advantage to one firm at the expense of another. The harm caused by these transfers has drawn the attention of U.S. government policy-makers, scholars, and commentators alike. The headline-making cases tend to focus on the taking of technical commercially valuable knowledge developed from a firm’s research and development or information with national defense implications, which are essentially trade-secret misappropriation situations. While these cases may involve employees or former employees of a U.S. firm who take a company’s proprietary information while on U.S. soil, it is also the case that technology has made remote and anonymous thefts possible. However, as the misappropriation of intellectual property rights remains a crucial business and security issue, there has been less consistent focus on an important underlying transfer mechanism of that commercial knowledge, which companies can exert some influence over. Specifically, the movement of knowledge across borders as a result of human capital movements has business implications on a par with the often-discussed theft of trade secrets. There is, in other words, a need to more closely examine the transfer of important commercial knowledge through the mobility of employees from one firm to an overseas competitor.
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