THEORETICAL ASPECTS IN THE FORMATION OF
PEDAGOGICAL SCIENCES
International scientific-online conference
35
PROBLEMS OF THE CONTENT OF KNOW-HOW IN
INTERNATIONAL LAW
Nadirbekova Umida Karamatdin qizi
Master at the University of World Economy and Diplomacy
Raimova Nargiza Doroyevna
Doctor of Sciences in Law, Professor of the Civil Law and International Private
Law Department of the University of World Economy and Diplomacy
https://doi.org/10.5281/zenodo.16949927
Abstract:
This thesis examines the content of the concept of know-how in
international law and the main problems of its interpretation. It analyzes the fact
that the concept is applied differently across various countries, that it is not fully
covered in the TRIPS Agreement, and the ongoing debates on whether know-
how should be included as an object of intellectual property.
Keywords:
know-how, trade secret, manufacturing secret, intellectual
property, TRIPS Agreement, EU Directive, confidential information, legal issues.
In the field of protecting manufacturing secrets, the international legal
interpretation of the concept of know-how and the problems related to its
content are characterized by specific complexities. Although the term know-how
was originally used to denote technical knowledge, manufacturing practices, and
confidential technologies, today its definition and content lack clear and uniform
criteria at the international level. This situation creates significant difficulties in
developing effective mechanisms for the protection of know-how.
The biggest challenge in achieving a clear and uniform definition of know-
how in international law is that the concept is interpreted differently across
states and legal systems. For example, in the European Union and the United
States, know-how is understood within the scope of trade secrets, whereas in
China it is more closely linked to commercial secrets and based on different
legislation. Furthermore, in some countries, the notion of know-how is partially
covered under copyright or patent protection, which leads to legal confusion.
In addition, international conventions and agreements lack clear and
universal principles for defining the content of know-how. For instance, Article
39 of the TRIPS Agreement establishes requirements for the protection of trade
secrets but does not directly employ the term “know-how.” This article sets out
three main conditions for the protection of trade secrets: the information must
be secret, have commercial value, and not be disclosed unlawfully. However,
these criteria are insufficient to define the broad scope and precise boundaries
of know-how[1].
THEORETICAL ASPECTS IN THE FORMATION OF
PEDAGOGICAL SCIENCES
International scientific-online conference
36
The 2016 Directive 2016/943 of the European Union attempted to provide
a clearer definition of know-how (trade secrets). This document defines know-
how as “information which is secret, has commercial value because it is secret,
and has been subject to reasonable steps to keep it secret, in the context of trade
or professional activity.” At the same time, the directive applies the following
criteria to know-how: secrecy, commercial value, and protection against
unlawful disclosure. Although the directive requires all member states to adopt
these principles as a common standard, in practice they may be understood and
applied differently in each state [2].
The term know-how was first used in a U.S. court in 1916. Translated from
English, know-how literally means “to know how to do it,” derived from the
phrase “to know how do it” [3].
In foreign legal systems, alongside the term “know-how” (U.S., U.K.,
Germany), other concepts have also been used, such as “trade secret” (U.S.),
“secret de fabrique” (manufacturing secret) and “savoir-faire” (know-how)
(France), which later entered Russian legal terminology as idiomatic terms.
There is an interrelation between the definitions of “manufacturing secret,”
“trade secret,” “know-how,” “industrial secret,” and other forms of confidential
information[4].
The 7th section of the TRIPS Agreement, devoted to this concept, is entitled
“Protection of Undisclosed Information.” Article 39(2) of this section provides:
“Natural and legal persons shall have the possibility of preventing information
lawfully within their control from being disclosed to, acquired by, or used by
others without their consent in a manner contrary to honest commercial
practices. Such information: is secret in the sense that it is not, as a div or in
the precise configuration and assembly of its components, generally known
among or readily accessible to persons within the circles that normally deal with
the kind of information in question; has commercial value because it is secret;
and has been subject to reasonable steps under the circumstances, by the person
lawfully in control of the information, to keep it secret” [5].
When discussing problems related to the content of know-how, particular
attention should be paid to the issue of including it among intellectual property
objects. This has been a matter of debate in legal scholarship for many years.
Although Article 1466 of the Civil Code of the Russian Federation directly
provides for absolute rights to manufacturing secrets, there remain a number of
problems in both legal scholarship and international practice [6].
THEORETICAL ASPECTS IN THE FORMATION OF
PEDAGOGICAL SCIENCES
International scientific-online conference
37
For instance, Professor I.A. Zenin expressed the following view regarding
the attribution of know-how to intellectual property: “Unlike a patent-protected
invention, know-how does not enjoy absolute rights, but only a practical
monopoly… The legal regime of know-how is not about protecting know-how as
such, but about ensuring, through different areas of law, the legal protection of
the property interests of the know-how owner (creator, purchaser)” [7, pp. 7–
14].
At the same time, the author also notes in his article: “Like copyright contracts
and patent licenses, know-how can be transferred to another person by contract,
either on exclusive or non-exclusive terms.” Thus, although the author did not
fully consider know-how as intellectual property, he nevertheless recognized
that it possesses several important features characteristic of intellectual
property objects.
Another scholar, V.I. Yeremenko, writes: “Information, including know-how,
as an intangible object generally represents the result of human intellectual
activity with a high degree of creative potential. At the same time, information,
in particular trade secrets (know-how), cannot be equated with intellectual
property objects” [8, p. 44].
It is evident that, to this day, there is no consensus in either scholarship or
practice regarding the necessity of including know-how among intellectual
property objects. Consequently, know-how continues to remain a legally
problematic object, and given its expanding use in international relations, there
is an urgent need to unify and clearly regulate it in law. To address these issues,
it is essential for the international community to develop common definitions
and standards and to harmonize national legislation with global requirements.
References
1.
Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS Agreement) https://www.wipo.int/wipolex/en/text/500864
2.
DIRECTIVE (EU) 2016/943 OF THE EUROPEAN PARLIAMENT AND OF
THE
COUNCIL
of
8
June
2016
https://eur-
lex.europa.eu/eli/dir/2016/943/oj/eng
3.
Ch. Amelin KE The concept of "know-how" // Foreign trade law. - M.:
Jurist, 2006. - No. 2. - P. 13–20.
4.
Intellectual Property. Textbook. Eds.: Doctor of Law, Prof. O. Oqiyulov; PhD
in Law, Assoc. Prof. N.E. Gafurova // Author collective. – Tashkent: Tashkent
State University of Law Publishing, 2019. – 588 p.
5.
Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) (WTO, Uruguay Round of multi-party negotiations, April 15, 1994) //
THEORETICAL ASPECTS IN THE FORMATION OF
PEDAGOGICAL SCIENCES
International scientific-online conference
38
Minkov A.M. International Protection of Intellectual Property - St. Petersburg:
Piter, 2001. - P. 676–719.
6.
Civil Code of the Russian Federation, Part 4 (CC RF Part 4), December 18,
2006,
No.
230-FZ
https://www.consultant.ru/document/cons_doc_LAW_64629/
7.
Zenin I.A. Commercial secret and know-how // Legislation. - 2005. - No.
12. – P. 7–14.
8.
Yeremenko V.I. World Trade Organization and the legislation of the
Russian Federation on intellectual property // Legislation and Economics. -
2006. - No. 10. – P. 35–47.1
