Intellectual Property Protection of Fact-based Works
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Intellectual Property Protection of Fact-based Works

Copyright and Its Alternatives

Edited by Robert F. Brauneis

The US Supreme Court decision in Feist Publications Inc. v. Rural Telephone Service Co. held that factual matter is not subject to copyright protection because it is not original to the author. The decision dramatically rejected a two-century-old tradition of protecting factual compilations under copyright. The contributors to this book reassess this decision and its implications, approaching the protection of factual matter from a range of perspectives: policy, historical, comparative, empirical and philosophical.
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Chapter 8: The Challenge of Protecting Trade Secret Information in a Digital World

Elizabeth A. Rowe


Elizabeth A. Rowe I. INTRODUCTION Trade secret law provides protection for facts, ideas, inventions and information. Part of the appeal of choosing trade secret protection over other kinds of intellectual property protection, is the relative ease with which a business can claim such protection and the broad scope of information that is protectable.1 A business can, for example, protect trade secrets without complying with a government registration system,2 and without observing any specified formalities. It is also not difficult to identify which materials might be eligible for trade secret protection. A trade secret can be any information of value used in one’s business that has been kept secret and provides an economic advantage over competitors.3 Thus, the kinds of information that can be protected include everything from customer lists to marketing strategies and chemical formulas.4 Accordingly, the kind of proprietary information and innovative concepts that tend to fall outside the copyright paradigm are within the ambit of trade secret law. See Taylor, Brooks W. (2005), ‘You Can’t Say That!: Enjoining Publication of Trade Secrets Despite the First Amendment’, 9 Computer L. Rev. & Tech. J. 393, 394–95 (discussing reasons why corporations rely on trade secret protection). 2 Copyright protection may attach without registration, but registration is necessary before a plaintiff files suit for infringement. Thus, prior to registration, a copyright owner is in a similar situation to the owner of a trade secret who does not know whether the targeted material will indeed be protectable. Registration of a copyright...

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