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THEORETICAL AND PRACTICAL PROBLEMS OF
THE LEGAL STATUS OF COMMERCIALLY CONFIDENTIAL
INFORMATION
Raimova Nargiza Doroyevna
Doctor of Sciences in Law
Professor of the International Private Law and Civil Law Department
University of World Economy and Diplomacy
https://doi.org/10.5281/zenodo.14038372
Annotation:
Information, exactly confidential information, is the most
important component of the development of society in formative modern world.
The current civil society is gradually turning from an informed to the
information, so we can fearlessly say that the 21th century is considered to be
the age of information. Information is a very important and necessary element of
any activity of man, society and the state in the public, social-economic and
political spheres.
It is noted in the article that the problems related to the fact that the
legislation provides a wide range of powers by government organs in the
different tests that may affect the interests of sensitive enterprise because unset
concrete facets of government intervention in economic activities of enterprises
considered painful for entrepreneurs in many countries.
Key words:
intellectual property, information, confidential information,
legal regime, types of information, methods of protection of information,
modern criteria.
In modern conditions information is a special kind of commodity, which
has a certain value. In this regard, one cannot but agree with the opinion of the
President of the Republic of Uzbekistan Sh.M.Mirziyoyev, who states that
“improvement of the system of ensuring information security and information
protection, timely and adequate counteraction to threats in the information
sphere are priority directions in the sphere of ensuring security” [3].
For entrepreneurs, the most valuable information is often that which they
use to achieve the goals of their enterprise and the disclosure of which may
deprive them of the opportunity to realize these goals, i.e. creates threats to the
security of entrepreneurial activity. Of course, not all information can, in case of
its disclosure, create various threats, but there are some types of information, in
particular, commercial and banking secrets, which need to be protected
[16, 21-26].
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As rightly notes K.S.Kushiyev, “the institute of trade secrets is one of the
important components of the system of ensuring the stability of the market,
limitation of monopolism in production and economic relations and through
these factors to a certain extent influences the block of social relations in
general. Without detailed development of the legal institute of trade secrets it is
practically impossible to progressive development of healthy market relations,
as well as full provision of the rights of authors of discoveries and inventions”
[11, 116-119].
The study of the issues of formation and development of the legal institute
of trade secrets, determination of its place and role in the formation of
mechanisms of information support for the activities of commercial
organizations and the legal provision of their information security is currently
an independent theoretical task, the establishment and fundamental importance
of which involves attracting the attention of civil science [14, 19-20].
Thus, when studying the nature of trade secrets, first of all, in our opinion,
it is necessary to understand what is its place among the objects of civil rights, in
particular, in the system of intellectual property objects, because, as rightly
notes Gafurov A., “in modern conditions, intellectual property right is becoming
one of the important factors determining the position of the country in the
world. At the same time, solving the problems of intellectual property protection
is an extremely difficult task. This is due to the insufficient development of legal
norms, differences in the approaches of individual countries and groups of
countries, lack of cross-border structures for the enforcement of laws” [4, 18].
Before answering the question whether trade secrets can be considered as
intellectual property, it is necessary to understand what the concept of
“intellectual property” is.
The term “intellectual property” can be found for the first time in the
French legislation of the XVIII century. Its justification is contained within the
doctrine of natural law, presented by French philosophers-enlighteners:
Voltaire, Diderot, Rousseau and others. In accordance with their views, “the right
of the creator of a creative result, be it a literary work or an invention, is his
inalienable, natural right, arises from the very nature of creative activity and
exists independently of the recognition of this right by the state power” [18,
626].
The theory opposing the proprietary one is the increasingly recognized
theory of exclusive rights. In accordance with the main provisions of this theory,
the rights of authors, inventors, patentees, etc. should be recognized as rights of
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a special kind, which are outside the classical division of civil rights into
proprietary, obligatory and personal rights [6, 266].
The concept of “result of intellectual activity” is detailed in the legislative
acts of the Republic of Uzbekistan devoted to the regulation of relations related
to specific objects of intellectual property. Thus, for example, in accordance with
the Copyright and Related Rights Act, the object of copyright is works of science,
literature and art that are the result of creative activity [1].
Meanwhile, the Civil Code of the Republic of Uzbekistan in Article 1031
defines the object of intellectual property as “the result of intellectual activity”
and not as “the result of creative activity” [2]. The concept of intellectual activity
is broader than the concept of creative activity and may well include non-
creative objects.
Further, the literature indicates that the object of intellectual property in
all cases refers to an intangible good that is merely embodied in certain tangible
objects that are its material carriers [18, 620].
Thus, the object of intellectual property is a certain intangible good
created as a result of human intellectual activity. It can also be information. As
already noted, information itself is intangible and is only embodied on material
carriers.
Also quite fair is the point of view of V.A.Kopylov, who believes that
“information is created practically in the process of any intellectual (mental)
activity of a person” [10, 49].
Accordingly, a trade secret as a type of information may well be
considered an object of intellectual property.
The question, however, is whether it actually is one?
In foreign literature, for example, the issue of attributing trade secrets to
intellectual property objects is solved in different ways. Thus, the american
author Richard Stim writes: “Trade secrets are an important type of intellectual
property rights” [20, 236].
In Germany, on the contrary, such information is not referred to the
objects of exclusive rights. Thus, according to G.Stumpf, “know-how is not a form
of industrial property protection, as it does not have the characteristics of an
exclusive right” [23, 33].
Another scholar of German intellectual property law also notes: “There is
neither an absolute nor an exclusive right to know-how for intangible results of
intellectual activity” [8, 15-16].
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The attribution of trade secrets to intellectual property is due to the fact
that historically the birth of the institution of trade secrets took place within the
framework of such an object of civil rights as intellectual property, and its legal
regulation was built on a model as close as possible to the already known one
[7, 99-113].
Proponents of the first approach, in particular, A.P.Sergeyev,
V.A.Dozorsev, believe that the information constituting a trade secret should be
considered an object of intellectual property, as it has all its properties and is a
type of intellectual property. For example, A.P.Sergeyev notes that “trade secret
is an institution of intellectual property, it has all the properties of an object of
intellectual property” [18, 620]. A.A.Fatyanov adheres to a similar point of view
[21, 284].
V.A.Dozorsev points out that “for isolated information, which is
understood as special information that has commercial value and is not publicly
available, it is necessary to fix an absolute right. Since the information
represents intangible knowledge, they are assigned the rights attributed to the
number of exclusive rights. However, these are not traditional exclusive rights,
but rather peculiar” [7, 99-113].
V.Smirnov argues that “trade secret is not an independent object of civil
rights, it can be attributed to the result of intellectual activity. He confirms the
similarity of these concepts, comparing the following features: both these
objects are intangible, they arise as a result of intellectual activity, although the
creative level of these objects may not be comparable, the criteria of
negotiability and protectability are applicable to these objects” [19, 34-37].
E.V.Shishmareva adheres to a broad approach to the understanding of
intellectual activity, that is, when intellectual property law regulates a wide
range of property (exclusive) and related personal non-property relations
arising from the results of intellectual activity and equivalent means of
individualization of a legal entity, individualization of products, works and
services. In this regard, it is pointed out that a trade secret is recognized as a
result of intellectual activity [22, 340].
Severin R.V. believes that “trade secret, which combines the secret of
production (know-how) and commercial information, refers to ‘non-traditional’
objects of intellectual property. In support of this conclusion, he points out that
trade secrets are the result of intellectual activity, which is a sign of intellectual
property” [17, 29].
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In contrast to the above authors, the proponent of the opposite approach,
in particular, the Russian legal scholar O.A.Gorodov, believes that “the legal
regime of secret information is fundamentally different from the legal regime
established in respect of protected results of intellectual activity”.
In his view, this distinction is manifested in the following:
1.
In the opposite orientation of the interests of the owner of confidential
information and the interests of the owner of information representing the
result of intellectual activity, since the persons of the first category are
interested in taking measures to prevent the dissemination of relevant
information, and the second, on the contrary, are interested in the dissemination
of the intellectual product.
2.
In different legal mechanisms of protection of the rights and interests of
the owner of the result of intellectual activity and the owner of trade secrets.
The owner of information constituting a trade secret restricts its dissemination
by technical and other means. Here there is a variant of the mechanism of
information protection alternative to the exclusive right - de facto monopoly.
Deliberately concealed information cannot be included in the framework
of exclusive rights, because the factor of their unknown nature does not allow to
establish the very content of information as an object of protection. In this case,
it is impossible, as is the case with the results of intellectual activity, to
determine the actions that can be performed by the owner of the information
himself and to authorize to perform [5, 82].
Kolomiyets A.V. also believes that “trade secret is an independent object of
civil rights and does not refer to a type of intellectual activity” [9, 62].
Belarusian scientist Losev S.S., in turn, also points out that “undisclosed
information (in particular, trade secrets) does not refer to the objects of
intellectual property”. The opinion on attributing trade secrets to the objects of
exclusive right, according to Losev S.S., is contradictory, “since the monopoly
granted to the owner of the exclusive right presupposes to determine the
positive component of the right to information, and this is impossible to do” [12,
62].
As far as the Republic of Uzbekistan is concerned, our national legislation
and scientific literature currently reflect the approach that trade secrets relate
to intellectual property, as civil legislation defines information constituting a
trade secret as a form of protection of undisclosed information, which, in turn, is
an object of intellectual property rights. This follows from the provisions of
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Chapter 64 of the Civil Code of the Republic of Uzbekistan “Protection of
undisclosed information from unlawful use” [2].
A similar approach is reflected in the works of our scientists. For example,
Okyulov O. [13, 170], I.Rustambekov, A.Nuridullayev [15, 4] also believe that
trade secrets, including know-how, are included in the system of intellectual
property objects.
Based on the above, we have come to the conclusion that trade secrets have a
dual nature. On the one hand, in our opinion, just like intellectual property
objects, information constituting a trade secret arises as a result of intellectual
activity. But, on the other hand, we believe that, to date, certain differences exist
between trade secrets and intellectual property objects, which lie in the
mechanism and purposes of their protection. Intellectual property objects are
open to third parties and are often valuable precisely because of their wide
distribution (e.g., copyright, patent right, trademark, service mark, etc.),
while information constituting a trade secret is valuable to its owner only when
it is unknown to third parties and, accordingly, hidden from them.
References:
1.
Law of the Republic of Uzbekistan “On Copyright and Related Rights” of
20.07.2006 № ZRU-42 // Vedomosti Chambers of the Oliy Majlis of the Republic
of Uzbekistan, 2006. – № 7. – Art. 372.
2.
Civil Code of the Republic of Uzbekistan. – Tashkent: Adolat, 2020.
3.
Annex № 1 to the Decree of the President of the Republic of Uzbekistan
“On the strategy of actions for further development of the Republic of
Uzbekistan” dated 07.02.2017, № UP-4947 // Collection of Legislation of the
Republic of Uzbekistan, 2017. № 6. – Art. 70.
4.
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property law // Review of legislation of Uzbekistan. – Tashkent, 2016. – № 2.
– P. 18.
5.
Gorodov O.A. Fundamentals of Information Law of Russia: Study Guide. –
SPB, 2003. – P. 82.
6.
Civil law. Textbook. Part 1 / A.P.Sergeyev and Y.K.Tolstoy. –
Moscow, 1996. – P. 266.
7.
Dozorsev V.A. The concept of trade secret (know-how) // Vestnik of the
Supreme Arbitration Court of the Russian Federation. – Moscow, 2001.
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8.
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15-16.
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9.
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11.
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12.
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13.
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Severin R.V. Mechanism of protection of rights to trade secrets: Author's
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