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§1.3. The legal nature of institute of a trade secret.

With a view of carrying out of comprehensive investigation of the maintenance of the norms defining the legal nature of institute of a trade secret, it is necessary to analyse normative acts of the Russian legislation and position of the Russian legal doctrine about a trade secret, regarding concerning the given concept.

First of all, occurrence in the Russian legislation of variety of new concepts, including the institute of a trade secret caused by transition to market economy, carried out in the Russian Federation. Thus, possibility of occurrence and wide use of such information, at realisation of enterprise activity, has appeared rather recently.

Consequence of it is certain instability

The legislation regulating legal maintenance of the rights and legitimate interests of proprietors of [49] trade secrets, and, accordingly, absence of uniform terminology, both in normative acts, and in the legal literature.

It is necessary to analyse the legislation in the field of trade secret protection ^ to leave on the tendency in development of this legal institution. Us thereupon the problems connected with a parity obshchegrazhdanskogo and the special legislation, and also definition of a place and a role of the investigated legal institution in civil law system, first of all, will interest.

Basic norms about a trade secret were the norms containing regarding first GK the Russian Federation, Has finished process of creation of institute of a trade secret in the Russian legislation the Federal act «About a trade secret» 1. Taking into consideration that the trade secret is the specific legal object, and also obvious tendencies of priority value of non-material values among other objects of the civil rights, to us is necessary in this connection to define a place of this legal institution.

For the first time, attempt * has been made, to regulate a trade secret at legislative level ^ in the Law of RSFSR «About the enterprises and enterprise activity» from December, 25th, 1990 (since January, 1st, 1995 has become invalid). In item 2 of item 28 of this Law to the enterprise for the first time has been accorded to store a right in a secret the information containing a trade secret. And the list of the data constituting a trade secret, was established by the director, and data which cannot constitute a trade secret, should be defined by the decision Ministerial council of RSFSR.

Really circle of such data has soon been designated by the governmental order of the Russian Federation from December, 05th, 1991 № 35 «About the list of [50 [51] [52] data which cannot constitute a trade secret» [53] where it has been established, that an enterprise and businessman trade secret cannot constitute: constituent instruments; the documents granting the right to be engaged by enterprise activity; data under the established forms of the reporting about financial and economic activity and other data necessary for check of correctness of calculation and payment of taxes and other obligatory payments; documents on solvency; data on number, structure working, their wages and working conditions; documents on payment of taxes and obligatory payments; data on environmental contamination, antimonopoly law infringement, non-observance of safe working conditions, realisations of production harming health of the population.

The information which cannot be carried to a trade secret, it is possible to subdivide conditionally on:

The information opened for all comers, for example, the annual report, accounting balance, the report on profits and losses of the open joint-stock company, obliged to publish them for general data (item 1 of item 97 GK the Russian Federation);

The information which owing to the law or other normative act cannot constitute a trade secret as a duty of the proprietor to acquaint with it all interested persons it is not statutory. Owing to the governmental order of the Russian Federation from December, 05th, 1991 № 35, as data which cannot constitute a trade secret, it is possible to allocate:

Documents on solvency of the organisation;

Data on number, structure working, their wages and working conditions;

Documents on payment of taxes and obligatory payments, data on environmental contamination;

Non-observance of safe working conditions;

About participation of heads in co-operative societies, in other organisations which are engaged in enterprise activity.

The similar information can be given interested persons under the contract on rendering of paid services.

In a decision preamble it is spoken about the purposes for which achievement it was accepted, namely for maintenance of activity of bodies of federal security service, the state tax service, law-enforcement and supervising bodies, and also preventions of abusings in the course of privatisation. It confirms the drawn conclusion that the data listed in it, are opened, first of all, for the bodies specified in a preamble, but is far not all of them are opened. Use by the state bodies

The received information it should be carried out as it should be,

Statutory. So, the Ministry of an antimonopoly policy, having received the information on the maintenance of the contracts concluded by enterprise-monopolist (the technical information connected with change of a profile of manufacture, on removal of products from manufacture and so forth) uses it at a legal investigation, initiated upon infringement by the enterprise - the owner of know-how of the antimonopoly law. But disclosure of the data constituting a trade secret, attracts responsibility: for officials - administrative which is provided, for example, article 25 of the Law of the Russian Federation from March, 22nd, 1991 “About a competition and restriction of monopolistically activity in the commodity markets” [54]; or criminal which is provided item 183 of the Criminal code of the Russian Federation, and for public authorities - in the form of the indemnification according to article 16 GK the Russian Federation.

Attracts attention that to number of the subjects having the right of an unimpeded access to data named in the decision, labour collectives of the enterprises are carried that should serve as an additional guarantee of observance of the rights of labour collectives at privatisation of the enterprises.

It is necessary to notice, circumstance, that the structure of data which cannot constitute a trade secret, is approved by the governmental order which analysis of the maintenance is spent, continues to replenish with various federal acts.

Thereupon it is necessary to note positions of article 32 of the Federal act «About the noncommercial organisations» from December, 08th 1995 года1 where it is especially reserved, that the sizes and structure of incomes of the noncommercial organisation, and also data on the sizes and structure of property of the noncommercial organisation, on its expenses, number and structure of workers, about payment of their work, about use of gratuitous work of citizens and activity of the noncommercial organisation cannot be a trade secret subject.

The norm of the similar maintenance is included in the Federal act «About charities and the charitable organisations» from July, 07th, 1995 [55 [56].

Behind activity of public associations it is established a special sort "control" from a society. In spite of the fact that possibility to be engaged in enterprise activity (if such activity serves achievement of the authorised purposes for the sake of which public association is created, and corresponds to these purposes) is given to public associations by the law, simultaneously, their possibilities, at realisation of such activity are rather limited. The given circumstance defines volume of data which public association can carry to a trade secret, namely - activity of public associations should be a vowel, and the information on their constituent and program documents opened (Federal act item 15 «About public associations» from April, 14th, 1995) 1. Besides, public association is obliged to publish annually the report on use of the property and to provide availability of acquaintance with the specified report (item 29 of the named Federal act).

With a view of prevention of a various sort of abusings at creation and realisation of activity of joint-stock companies (in particular opened) in the Federal act «On joint-stock companies», according to item 1 of item 92 of the given law it is established a duty of open joint-stock company annually to publish in the mass media accessible to all shareholders of the given society: the society annual report, accounting balance, the account of profits and losses; the prospectus of issue of actions of a society in the cases provided by legal acts of the Russian Federation; the message on carrying out of general meeting of shareholders in an order, statutory; lists of the fixed persons of a society with instructions of quantity and a category (types) of actions belonging to them; other data defined by the Federal commission under securities and the stock market at the Government of the Russian Federation.

The federal commission on securities and the stock market at the Government of the Russian Federation has enacted on May, 8th, 1996:

To establish, that open joint-stock company in addition to the data specified in point 1 of article 92, is obliged to publish:

Parity of cost of pure actives and the size of the charter capital; quantity of shareholders;

The name, the organisation-legal form, site, [57 [58]

The post address, number of contact phone, number of the licence of Federal Commission on Securities of Russia of the specialised registrar by each kind of nominal securities if according to the legislation of the Russian Federation conducting the register of nominal securities of joint-stock company be carried out by the specialised registrar having the licence of Federal Commission on Securities of Russia;

The name of division of the joint-stock company which is carrying out conducting of the register, its site, the post address, number of contact phone if the joint-stock company according to the legislation of the Russian Federation carries out independent conducting the register nominal valuable бумаг1.

The wide rights the law allocate the trade-union organisations. Among which it is possible to note the right of trade unions to the information, fixed in Federal act item 17 «About trade unions, them

·u

The rights and activity guarantees »from December, 08th, 1995, namely - for realisation of the authorised activity trade unions have the right free of charge and to receive free from employers, their associations (the unions, associations), public authorities and local governments the information on sociolabor questions. The circle of the data, concerning sociolabor questions is wide enough, and among them there can be the data constituting a trade secret. However the given circumstance is not an obstacle for acquaintance of members of the trade-union organisation with the last.

As follows from the resulted list of the data carried to a trade secret, it can be limited, and it is defined by an enterprise legal status, and also activity carried out by it, that is the purposes of creation of the enterprise or the organisation.

More often, in normative acts it is underlined data which not [59 [60] can constitute a trade secret, and sometimes, on the contrary - in the law the instructions on the data constituting directly a trade secret contain. For example, in Federal act item 10 «About book keeping» from November, 21st 1996 года1, it is directly said, that the maintenance of registers of book keeping and internal accounts is a trade secret, and in the cases provided by the legislation of the Russian Federation, - the state secret.

The persons who have got access to the information, containing in registers of book keeping and in internal accounts, are obliged to store commercial and the state secret. They bear the responsibility established by the legislation of the Russian Federation for its disclosure.

As the data of technical, economic or organizational character isolated by the proprietor and hranimye by it as fiduciary represent certain value which can come under to an estimation in money terms they should be reflected in balance of the enterprise, and, accordingly, to be considered at the taxation. Patents for inventions, licences, a know-how, software products, trade marks, trade marks concern their number, which Positions according to item 4 “About structure of expenses also... P [61 [62] [63] [64] [65] are carried to non-material actives.

Besides, if the organisation gets the various data of technical, economic or organizational character constituting a trade secret, under the contract it should consider them as non-material actives, but under two conditions:

They are used more than a year;

Bring in the income (Position item 48 about book keeping and the reporting), and expenses for their acquisition are compensated through the mechanism

Depreciation charges.

Simultaneously with use in normative acts of the term the trade secret, for a designation of data of the technical economic or organizational maintenance kept by their proprietor as fiduciary, is used the know-how term. For example, in numerous intergovernmental conventions and the agreements devoted to questions of avoidance of double taxation and prevention of evasion from the taxation the term “incomes of copyrights and licences” (at use in texts of such conventions) means - the payments of any kind received as compensation for use or for according a right of using of any copyright to a literary work, arts or sciences, including cinema films and television movies or videorecordings for radio and TV, any patents, trade marks, design or model, the plan, the confidential formula or process, or for the information (know-how), concerning industrial, commercial or scientific опыта1. Probably made definition was accepted for a basis by working out of the Tax Code of the Russian Federation (in a part, concerning the data constituting a trade secret). However it is represented not quite successful and this results from the fact that by working out of intergovernmental documents it is necessary to consider a level of development of legislative regulation in the various countries, therefore in texts of such documents for a designation of those or other categories terms which in internal legislation have no wide circulation can be used or others are used.

That fact, that in the resulted texts of Agreements and know-how Conventions is considered as object of the licence contract, testifies to possibility to consider it as object of exclusive rights.

Often enough in acts and the legal literature besides as about the commercial it is spoken and about bank secret.

The legislator has not defined parities of concepts "trade secret" and “bank secret”. Whether is the second a special case of the first or the independent legal institution?

Trade secret definition is given in item 139 GK the Russian Federation in section "General provisions", and the maintenance of bank secret reveals in section «Separate kinds of obligations», in item 857 GK the Russian Federation, by transfer of data, its components. The arrangement of given articles in the Code and absence of definition of bank secret gives the basis to assume, that commercial and bank secrets correspond, as the general and especial.

To bank secret the Russian Federation is devoted item 857 GK. The mention of it contains also in a number of the laws concerning tax system, and also in the subordinate legislation accepted in development of these laws, in ^ukazah the President of the Russian Federation on tax questions, on crime control etc.

The bank secret is understood as the professional obligation of bank to hold in the strict secret all information concerning financial and personal aspects of activity of clients and some third parties provided that such information pocherpnuta as a result of normal bank service of these clients.

At the same time, the legislation does not establish yet uniform definition of bank secret, that is it carries only kazualnyj character, providing cases and the bases of reference of certain data to bank secret and restrictions in their distribution and reception. So, it agree ч.1 item 26 of the Law of RSFSR from December, 02nd, 1990 «About banks and bank activity» from February, 03rd, 1996 № 17-FZ [66], the bank secret includes secret on operations, accounts and contributions of clients and correspondents of bank, and also other data established by the credit organisation.

Under item 857 GK the Russian Federation the bank guarantees secret of the bank account and the bank contribution, operation under the account and data on the client. It allows banks to expand the list of data, hranimyh as fiduciary. However such expansion should not contradict the federal legislation.

Basic distinctions between institutes bank and commercial secrets can be formulated in the following:

In the subject structure, establishing the maintenance and volume of corresponding institute of secret. The institute of bank secret is established by the legislator at federal act level. The trade secret institute is established by the head of the commercial organisation at own discretion, but he has the right and not to establish in rukovodimoj it the organisation trade secret institute;

In subject structure of the persons who are proprietors of data, constituting corresponding secret. The proprietor of bank secret is the client concerning data on. Proprietors of a trade secret - founders of the commercial organisation, that is the persons who are carrying out the property right concerning property of the commercial organisation;

In that an establishment of institute of bank secret so also its protection is a duty of the credit organisation for which default employees of bank bear disciplinary, material and the criminal liability. The establishment of institute of a trade secret is not a duty, and the right of the head of the organisation of which last can and not take advantage.

The norms providing protection of the rights of owners of a trade secret, are a part of the legislation directed on struggle against an unfair competition which in the Russian Federation only starts to develop. Its basic certificate is the Law of the Russian Federation from March, 22nd, 1991 «About a competition and restriction of monopolistically activity in the commodity markets» [67] with the changes brought by the Federal act from May, 25th, 1995

In item 4 of this Law unfair competition definition according to which an unfair competition any admit directed on acquisition of advantages enterprise activity of action of managing subjects which contradict current legislation positions, to customs of a business turn, requirements of respectableness, a rationality and justice is made and can cause or have caused losses to other managing subjects to competitors or to aggrieve to their business reputation. So wide definition allows to recognise action of the managing subject on wrongful reception and disclosure of a trade secret not belonging to it, or contrary to treaty provisions about confidentiality, the unfair competition certificate.

Practice shows, that the organisation has rather valuable information which is not entering into the list of data which cannot constitute a trade secret, but does not accept measures to protection of its confidentiality. For example, technical workings out at level of objects of industrial property on which papers are not made are sewn up, and which are not protected by trade secret institute.

Reception, use, disclosure of such information (not protected by the proprietor by means of trade secret institute) without the consent of its lawful owner can be considered as the unfair competition form (item 1 of item 10 GK the Russian Federation, item 10 of the Law of the Russian Federation «About a competition and restriction of monopolistically activity in the commodity markets»).

As the Russian Federation follows from the name of item 139 GK - it is directly devoted «office and a trade secret».

Use of terms "commercial" and "office" as equivalent can sometimes mislead. As, when it is spoken about "office" secret (not mentioning simultaneously

"Commercial") first of all mean those data, which steels are known in connection with public service. And the relations arising in such area, are regulated by administrative law. Though, as follows from resulted, the legislator uses

Mainly the term "trade secret".

For the high-grade analysis of the legal nature of institute of a trade secret it is necessary to address to item 151 of Bases of the civil legislation of Union CCP [68] (further - Bases). Item 151 of Bases provided conditions of protection of know-how (know-how). They were understood as the technical, organizational or commercial information, which:

Has real value (valid) or potential commercial value owing to uncertainty to its third parties; to it there is no easy approach legally; the owner of the information takes measures to protection of its confidentiality.

Item 139 GK speaks the Russian Federation about conditions of protection of the information constituting commercial (office) secret. They coincide with the conditions specified in article 151 of Bases. But unlike Bases, article 139 GK the Russian Federation does not operate with the term "know-how" (know-how) and does not list types of information (technical, organizational, commercial), leaving to the discretion of the organisation (the individual businessman), which information to include in structure of the data protected as commercial or the official secret.

The trade secret is the information not opened for the third parties on enterprise activity of its owner. As it was specified, data which cannot constitute a trade secret, are defined by the law and other legal acts. At the same time the trade secret is a legal regime of the information of the limited access which confidentiality is established in an order provided by article 139 GK the Russian Federation.

The list of the corresponding information carried to commercial (office) secret, article 139 of the Civil code does not result.

It is necessary to notice, that the approximate list of the data constituting (able to constitute) trade secret, no less than the list of data which cannot constitute that secret, should be statutory, instead of the subordinate legislation certificate as it takes place now. A circle of the data, not able to constitute a trade secret,

Provided by the governmental order of RSFSR from December, 05th, 1991, should be reduced. At the same time, it is necessary to remember always, that the trade secret institute does not extend on access of the state bodies, their officials operating within their competence, receiving the corresponding information at performance of control, supervising and other functions by them. Use by the state bodies of the received information is carried out in an order, statutory.

As practice shows, the part of the data protected by institute of a trade secret, usually is not a subject of independent transactions, however their disclosure can cause a property damage of the organisation and harm of its business reputation.

So, Joint-Stock Company "Publishing house" the Economic newspaper "has addressed in Arbitration court of of Moscow with the claim to Joint-Stock Company" Publishing house "Business and service" about collecting for infringement of the exclusive rights to articles - of consultation of indemnification in the sum of 10 minimum wage rates for each infringement admitted by the respondent - all 33 thousand roubles.

From 18.04.02 manufacture on business is ceased by definition referring to article 22 of the Arbitration code of practice Russian

Federations of 1995 because of nepodvedomstvennosti dispute to arbitration court as dispute consideration can infringe on interests of authors of the published products which are physical persons.

Definition is left by decisions of appeal instance and court of cassation without change.

Cancelling all judicial certificates taken out on business and directing business on new trial. The presidium YOU the Russian Federation has specified the following.

According to article 22 of agrarian and industrial complex of the Russian Federation 1995 to arbitration court podvedomstvenny affairs on the economic disputes arising from civil matters between legal bodies.

The recovery suit according to article 49 of the Law of the Russian Federation "About the copyright and the adjacent rights" indemnifications for infringement of exclusive rights of the publisher of products of the press concerns the economic dispute following from civil matters which has arisen between two legal bodies.

By the claimant as proof of presence at it exclusive rights to the products published by the respondent without the sanction of the legal owner, prisoners between Joint-Stock Company "Publishing house" the Economic newspaper "and authors of the products included in the periodical of the respondent have been presented court operating author's dogovory.

Authors of products were not got to take part in business and did not declare necessity of the participation. Joint-Stock Company "Publishing house" Business and service "did not refer to the fact of cession of rights on the same products by their authors under the author's contract with it.

Under such circumstances the reference of vessels to necessity of consideration of dispute with participation of physical persons - authors of products is unreasonable and has led to deprivation of the claimant of the right to judicial protection by court of competent jurisdiction. The named dispute podvedomstven to arbitration court. [69]

Other part of such data, on the contrary, can be a subject

Various contracts: constituent, investment, contracts about

To transfer of scientific and technical production, the contract on rendering vozmezdnyh services.

Rustles has addressed in court with the claim to edition of the newspaper "Tribune" and the senior assistant to the public prosecutor of of Syktyvkar CH about indemnification of the moral harm caused to it by the publication of article "the Dirt on white dressing gowns" in the newspaper after March, 27th 1993г.

The claimant has referred that stated in article author CH of data mismatch the validity and discredit its honour and advantage, in communication, C than to it moral harm is done.

The representative of edition of the newspaper "Tribune" the claim did not recognise.

By the decision of the Syktyvkar city people's court from September, 29th, 1994 (the definition of the full court left without change on civil cases of the Supreme Court of Republic Komi) in favour of SHorohova in compensation of the caused moral harm it is collected from edition of the newspaper "Tribune" of 5 million rbl., with CH - 1 million rbl. Presidium of the Supreme Court of the Russian Federation, upholding the decision, has specified, in particular the following.

... C with statements in the protest that CH, acting in the newspaper with the given publication, operated as the worker of Office of Public Prosecutor and according to item 3 of item 40 of the Law of the Russian Federation "About Office of Public Prosecutor of the Russian Federation" (operating for the period of occurrence of disputable legal relations) cannot bear responsibility for the published data received as a result of office activity, it is impossible to agree.

According to item 3 of item 40 of the named Law, cancellation or change of the decision accepted by the public prosecutor, in itself do not attract its responsibility if they have not grown out of deliberate law-breaking or unconscientiousness.

The named norm to the arisen legal relations is inapplicable. In this case the question on responsibility is not connected with cancellation or change accepted CH decisions, and follows from the publication fact in the newspaper of data, though and received as a result of office activity, but mismatching the validity both discrediting honour and advantage of the citizen.

In that case responsibility under item 7 GK RSFSR comes irrespective of the fact which these data are received by image and in communication, with what they are extended.

As data have been given the shape literary article, the author of article CH along with newspaper edition obosnovanno, taking into account the explanation given in item 6 of the named decision of Plenum of the Supreme Court of the Russian Federation, is involved on business in quality of the respondent.

The reference in the protest on item 1069 item, 1070 parts of the Russian Federation second the Civil code in a substantiation of a conclusion that CH, Republic Komi organs of the Prosecutor's Office cannot be recognised by appropriate respondents, is unreasonable.

According to ch. 2 items 1070 of a part of the Russian Federation second the Civil code, the harm caused to the citizen or the legal body as a result of illegal activity of organs of the Prosecutor's Office, not entailed the consequences provided by item 1 of this article, are compensated on the bases and in an order established by item 1069 of the Code.

Item 1069 GK the Russian Federation, providing compensation by the state bodies of the harm caused as a result of illegal acts, makes this responsible treasury of the Russian Federation (treasury of the subject of the Russian Federation or municipal union treasury).

However in mass media it is impossible to recognise publication CH of article of activity of public authority following from character in which it worked. Therefore degrees of jurisdiction, not seeing the bases for putting on in this case responsibility for moral harm on Office of Public Prosecutor of of Syktyvkar, have legally made this responsible the author of the publication and edition of corresponding mass media. [70]

According to Law item 18 «About mass-media» when this or that message has been published under instructions of the founder, it

It is involved as the appropriate respondent on business.

The organisation has addressed in arbitration court with the claim to newspaper edition about collecting from it the losses caused by the publication of data discrediting its business reputation.

The arbitration court has satisfied the claim.

The court of cassation has cancelled the first instance decree on following bases.

According to business materials challenged data are published in the newspaper under instructions of its founder and from his name.

According to item 18 of the Law of the Russian Federation "About mass media" when the founder on the basis of the powers given to it has obliged edition to publish in the newspaper from his name the corresponding message or a material, it bears responsibility under all claims and the claims connected with such publication.

As edition has published challenged data in the order established by named article, it cannot be made responsible for them распространение.1

The analysis of the current legislation and its separate positions defining, to some extent the maintenance of institute of a trade secret, it would be possible to continue. However in it there is no necessity as the carried out analysis already allows to draw a conclusion on attempts of the legislator to achieve effective legal regulation which will allow to establish optimum balance of interests

Businessmen, the states and societies in the given question.

The accepted third part of the Civil code of the Russian Federation, has not included the positions devoted to exclusive rights, including to the information constituting a trade secret. The passed law «About a trade secret» has not removed all problems which have collected in this area. Such statement can be made proceeding from following reasons.

First, the Code is a complex of basic norms for civil law. In it such difficult legal institution as a trade secret cannot be to the right degree detailed. [71]

Secondly, area of information relations one of the most dynamical areas, we see, that after acceptance of the third part and the law on a trade secret, there will be a necessity of the modification, caused by the reasons of objective character, and the special law is more "flexible" and adapted for these purposes, than the Code. Therefore, it is necessary to support the point of view stated by some lawyers about importance of acceptance of the special law «About a trade secret» 1. For example, the given position was expressed in article «Problems of legislative protection of a trade secret in Russia» by Victor Kravchenko [72 [73]. In its opinion, the trade secret institute has been insufficiently developed in the civil legislation for following reasons: laws did not open concept of a trade secret and of them such contradictions which it was sometimes impossible to understand even to skilled lawyers contained. In a separate problem it had been allocated inadequate legal regulation of secrets, manufactures or a know-how. The adoption of law about a trade secret should solve all specified problems. E.V.Ilinyh also expressed in favour of acceptance of such law, allocating following problems of the future certificate: to deduce on legislative level definition of the list of data which cannot constitute a trade secret, extend to it action of institute of intellectual property, develop the accurate mechanism of protection [74]. One more offer of researchers consisted in creation of a special mode of legal regulation of reports of information in a network the Internet and a recognition at law level, that the electronic

Messages can contain a trade secret [75].

In GK the Russian Federation is quite enough to establish substantive provisions, namely:

Accurate concept of the data constituting a trade secret (by instructions on signs characterising them);

Instructions on the bases of occurrence of such rights to the named object;

Definition of the content of rights of its owner;

Establishment of special ways of protection of the owner a trade secret, besides provided in article 12 GK the Russian Federation.

In the Federal act «About a trade secret» in more details, than in the Code, it is necessary to establish following positions:

To designate, how much it is possible, character and structure of data which can constitute a trade secret;

To establish the list of data which cannot constitute a trade secret, and it should not be settling;

More particularly, than in the Code to define the rights to a trade secret;

To define the rights of the proprietor of a trade secret to an establishment of a mode of the information, its containing, and also an order of change or cancellation of this mode.

The carried out analysis of the operating Russian legislation, regarding definition of the legal nature of institute of a trade secret, its maintenance, taking into account the law «About a trade secret», allows to draw certain conclusions.

I. In the act (the Civil code or the Federal act “About a trade secret”) it is necessary to make the following developed definition:

The trade secret - set of the data not being the state secret representing the valid or potential value for the subject of business, which disclosure can cause to it a damage and in which relation appropriate measures on confidentiality preservation are taken.

2. In the law «About a trade secret» it is necessary to define a legal status of institute of a trade secret and a know-how, and also to expand the rights of the owner of such information in possibility at own discretion to define measures of maintenance of such mode. For example: «To the data constituting a trade secret, and intended for the limited circle of persons, can be carried:

Primary accounting documents and intermediate financial reports;

Data on the most favourable forms of use of money resources, securities, actions;

Business correspondence; the list of clients; data on the concluded contracts (contracts), their maintenance, offers in their opinion;

Data on credit status of the organisation;

Plans for development and manufacture reorganisation; structures and management methods; communications inside and out of firm; distribution of duties and their maintenance; personnel structure, its selection, formation;

Condition of material base of the given organisation; other information, under a condition if data its components are not carried by the current legislation to opened ».

And presented in the form of results of intellectual activity (know-how) can be carried to the data constituting a trade secret:

Data on the neopublished scientific and technical results, technical decisions, methods, ways of use of technological processes and devices which are not provided by patent protection under the legislation or at the discretion of the person, the possessing such

The information legally;

Databases and the computer programs created by workers of the given organisation [76];

Knowledge and experience in area of realisation of production and services; data on market condition, results of marketing researches; commercial, methodical or organizational-administrative ideas and decisions.

Such list will serve as a good reference point for practical workers, at definition of data constituting a trade secret (know-how), and also at an establishment of a mode of confidentiality concerning these data.

3. In the law “About a trade secret” it is necessary to define the information which cannot constitute a trade secret, and the given list should not and cannot be settling.

“The information cannot be carried to a trade secret:

Constituting the state secret;

Containing in constituent instruments;

Containing in the documents granting the right to be engaged by enterprise activity (registration certificates, licences etc.);

In forms of annual accounts;

Containing data on paid activity of civil servants;

About debts of employers on payment of wages and other payments of social character;

About activity of the charitable organisation;

About presence of free workplaces;

Connected with observance ecological and the antimonopoly law, with not maintenance of safe working conditions, with realisation of production harming health of the population, and also with other infringements of the legislation of the Russian Federation, the legislation of subjects of the Russian Federation, and also containing data about the sizes of the caused losses;

About realisation of a government program of privatisation and conditions of privatisation of concrete objects;

For which restrictions on an establishment of a mode of a trade secret according to the current legislation are defined.

The given list can be added or Dizmenen.

4. In the law followed especially reserve that fact, that for an establishment of a mode of a trade secret it is not required official registration or performance of other formalities.

5. In the law it is necessary to specify the conceptual device of some definitions. For example, in the text terms "document" and «the material carrier» which sense has essential value for the decision of a question on are used, whether the information containing on this or that carrier can, to be regarded as protected.

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A source: Krikun Lidiya Aleksandrovna. CIVIL-LAW PROTECTION of the TRADE SECRET In the RUSSIAN FEDERATION. The dissertation on competition of a scientific degree of the master of laws. Moscow. 2005

More on topic §1.3. The legal nature of institute of a trade secret.:

  1. Chapter 1. The legal nature of a trade secret
  2. §1.2. Concept "trade secret" and "state secret" and their parity
  3. §1. The mechanism of protection of a trade secret
  4. §2.2. Civil-law ways of protection of a trade secret
  5. § 1. The social and legal nature of institute of the justifiable defence
  6. §1. Concept and the is social-legal nature of institute of legal encouragement
  7. Chapter 2. The basic directions of civil-law protection of a trade secret and a way of their perfection
  8. the legal nature of the contract on use of objects of the copyright as designations (trade marks)
  9. the legal nature of the contract on use of objects of the copyright as designations (trade marks)
  10. Chapter 1. The legal nature of institute of public service
  11. CHAPTER 1. LEGAL NATURE OF INSTITUTE OF LEGAL RESTRICTIONS
  12. § 1. Concept and the nature of institute international legal otvetstven posti
  13. Chapter 1. The is social-legal nature of institute of active repentance
  14. genesis and the legal nature of institute of deduction as way of maintenance of obligations in the Russian civil law
  15. legislative interpretation of the term "secret operation" and the modern standard standards regulating an order of authorisation and carrying out of secret operations