The role of trade secrets law in the data economy: an empirical analysis

Aplin, Tanya; Radauer, Alfred; Bader, Martin A. and Searle, Nicola. 2023. The role of trade secrets law in the data economy: an empirical analysis. IIC - International Review of Intellectual Property and Competition Law, 54(6), pp. 826-858. ISSN 0018-9855 [Article]

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Abstract or Description

This article draws on a recently completed study for the European Commission on trade secrets in the data economy. It distils the main findings of that Study and advances it by reflecting on and analyzing these findings in the context of existing legal, management and economics literature, as well as their implications for EU legal policymaking when it comes to trade secrets law. In order to facilitate data sharing, the article argues for a cautious approach, with very modest legislative reforms to the EU Trade Secrets Directive, instead preferring soft law and practical steps to be taken. There is, however, greater scope to reform legal regimes that are complementary to EU trade secrets law, such as the sui generis database right.

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The article draws on the empirical findings and some limited text from European Commission, European Innovation Council and SMEs Executive Agency, Radauer A, Bader MA, Aplin T, et al., “Study on the legal protection of trade secrets in the context of the data economy: final report”, Publications Office of the European Union, 2022, which was a piece of contract research for the European Commission (contract number EASME/2020/OP/0008). Many thanks to Ms Brigitte Lindner, Prof. Nari Lee, Prof. Ulla-Maija Mylly and Prof. Sharon K. Sandeen for their valuable comments on a draft version of this article and to Dr. Nazanin Aslani for her editorial assistance. Thanks also to the participants at the EPIP Conference, 14–16 September 2022, and the Oxford Intellectual Property Research Centre seminar on 27 October 2022 for their feedback on the research contained within European Commission (2022). The Study resulted from a piece of contract research (contract number EASME/2020/OP/0008) and thus the European Commission owns the IP rights in it. This article draws on the empirical findings of the Study and re-uses and adapts limited parts of its text, while adding new analysis and commentary by the authors, resulting from further reflection on, and discussion of, the Study with scholars.


Trade secrets, Data economy, Data sharing, Confidential and commercially valuable data, Contract, Copyright, Database right, EU legal policy

Departments, Centres and Research Units:

Institute for Cultural and Creative Entrepreneurship (ICCE)


12 April 2023Accepted
10 May 2023Published Online
July 2023Published

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Date Deposited:

13 Nov 2023 09:48

Last Modified:

13 Nov 2023 09:48

Peer Reviewed:

Yes, this version has been peer-reviewed.


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