Edited by Christophe Geiger
Chapter 22: Right to property and trade secrets
Trade secrets are considered as highly important and valuable for business. But does their protection warrant elevation to the status of human or fundamental rights, in particular the right to property? This chapter examines whether trade secrets fall within the scope of Article 1 of the First Protocol (A1P1) of the European Convention on Human Rights (ECHR) and also Article 17 of the EU Charter of Fundamental Rights (Charter) and argues that there are sound reasons for excluding them. Moreover, it assesses the potential impact of protecting trade secrets as fundamental property rights, in particular in relation to liability, exceptions and remedies. This is contrasted with a model of protection that does not treat trade secrets as property, as illustrated by the recent EU proposal for a Trade Secrets Directive. A1P1 ECHR provides: Article 1 Protection of property Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
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