Trade Secrets as a Resource for Value Creation. A study investigating the impact of the EU directive (2016/943) on companies’ value creation

Abstract

Businesses have in the recent years been experiencing an increased dependency on knowledge, which is becoming the most important and valuable asset in companies, who are in need of protecting it in order to exploit it successfully. The EU directive (2016/943) was proposed in 2016 with an implementation deadline in 2018, and aimed to harmonize the trade secret laws across Europe, which varied greatly among countries and created obstacles for companies. This study aims to investigate how the new EU directive (2016/943) on trade secrets has affected European companies and their trade secret management and the value creation thereof. The focus is on companies operating within the EU, but in regards of court cases, the study is primarily focused on Denmark, Sweden, Ireland, and the UK due to language barriers. The UK is included despite Brexit since the trade secret legislation is the same. The study uses an inductive and qualitative approach with few quantitative elements where interviews and court cases represent a primary source of data and literature a secondary source of data. The interviews are semi-structured and are conducted with companies, lawyers and professors in order to get insights from different perspectives. Court cases are analysed in a comparative manner where different quantitative variables are explored in regards to different points in time, e.i. before and after the implementation of the EU directive (2016/943). The results show that the EU directive has had an impact on companies and their trade secret management in terms of strengthened trade secret protection, improved measures to enforce trade secrets, making it easier to obtain damages, improved possibilities for collaborations across borders for example. The improved trade secret management has made companies more successful in legal disputes as well as the proactive work prevents them from getting into disputes. There is a higher awareness of trade secrets and companies are more willing to have trade secret protection prior to other IPR. The increased awareness and motivation to use trade secrets as a result of the EU directive (2016/943) however, can be discussed. To conclude, the EU directive (2016/943) has had a positive impact on companies and their trade secret management and prompted them to manage trade secrets correctly, which results in a better ability to create value. The results are valuable insights for companies, lawyers, researchers and other professionals.