Trade secret protection for “Big Data”

Barbara Radon (MIPLC Munich), “Trade secret protection for “Big Data””

Never before in the history of mankind new technologies have been developing so rapidly, leading to a massive acceleration in the production of data. As a consequence, this huge volume of information, often called “Big Data”, is becoming an important source which can create new knowledge and new value as well as foster new products and develop new markets. In this manner data-driven innovation is becoming one of the core resources of growth. This economic and social phenomenon causes a series of legal problems, since it has not been foreseen at the moment designing the current legal framework that data sets could be one of the core asset in the economy.

The development of “Big Data” raises a range of legal problems concerning different legal branches. The main issues relate to i.a. the ownership of “Big Data”, the appropriate regime of protection, the intersection with different branches of law, including the question of re-designing antitrust law. This paper will focus, however, on the problem of the protection of “Big Data” under trade secret law. The analysis will be geographically focused on the EU, however, will also distinct between the continental and civil law countries perspectives.

The starting point of the paper would be defining the scope of “Big Data”, including what different type of data could be classified as “Big Data” (e.g. personal data). Currently, there is no unified definition of “Big Data”, however, most of the definition proposed in the literature refer to three main features of “Big Data”, namely to volume, velocity and variety of data. For the purposes of this paper, a couple of working definitions will be established.

Secondly, the paper will present a detailed analysis of trade secret law. It will focus on the recent developments in the EU law, namely the draft of the directive on the protection of undisclosed know-how and business information (trade secrets).
As a next step, it will be determined what requirements have to be met under current trade secret law in order to protect the “Big Data”. With this regard, also the issue of data ownership will be analysed. 

Furthermore, the paper will include also the critical evaluation of existing legal protection possibilities and its consequences for “Big Data” development. The core questions would be how to create enough incentives to invest in “Big Data” and whether any changes in trade secret law could be advisable in order to encourage further developments of “Big Data”.

This paper will hopefully provide an answer to the above questions and will propose recommendations on how “Big Data” shall be protected under trade secret law.