By Vikrant Rana and Swayamsiddha Das
Those who forget history are condemned to repeat it, the Battle of Plassey fought in 1757 ,which was the turning point of our Indian history was lost because confidential information and war strategy were leaked to the British by the Indian Mughal Commander. With time, safeguarding and protecting trade secrets and information have become important. According to WIPO trade secrets are “Intellectual Property rights in confidential information which may be sold or licensed”[1]. However, keeping in mind the current economic scenario where everything is driven by technology, maintaining confidentiality with just NDAs and contracts seems difficult. Meeting the challenges head-on and understanding the dire need for a codified law that specifically protects Trade Secrets, the 22nd Law Commission of India headed by Hon’ble Justice Mr. Ritu Raj Awasthi in its 289th Report has proposed the Trade Secrets Bill 2024.
Trade Secrets Bill 2024
In the report Hon’ble Justice Ms. Prathiba M. Singh of the Delhi High Court in her comment highlighted the increase in the number of cases pertaining to Trade Secrets filed before the Delhi IP Division and the need to have a separate law for the same. [2]At present, India does not have a codified law yet that protects trade secrets. So when issues about trade secrets arise courts in the absence of an act have to rely on precedents, interpretation, and judge-made laws to address such problems.
According to Justice Singh, having a clear law on trade secrets would help companies and businesses keep their secrets safe and understand what remedies are available if someone tries to steal their trade secrets. It would also make businesses feel safe about sharing their technology with India. Lastly having a clear law on trade secrets can help India avoid problems when entering into trade agreements with other countries.[3]
The Commission studied the TRIPS Agreement and the obligation of India arising out from it. The commission has also explored the best practices followed in other countries like the UK, USA, EU, and Germany, before proposing the Bill.[4]
Highlights of the Bill
- Definition
The newly recommended Bill under Section 2(f) defines Trade Secret as any information that is secret in the sense that it is not generally known among or readily accessible to people, derives commercial value on account of being secret, has been subject to reasonable steps under the circumstances by the holder of such information to keep it secret and disclosure of such information is likely to cause damage to the holder of such information
- Appropriate Jurisdiction
Section 8 of the bill states that all suits on misappropriation of trade secrets should be instituted at the Commercial Courts having jurisdiction.
- Rights of holder of Trade Secrets
Section 3 provides that the holder of the trade secret has the right to use and disclose his trade secrets. It gives the holder of the trade secret the right to institute suits in case of misappropriation or disclosure of the trade secret. Further, it states that if the right holder enters into any contract/agreement to safeguard its trade secret, restricts access, or prevents disclosure of such trade secret then he shall be governed by the provisions of the Indian Contract Act, of 1872.
- Remedies
Section 7 of the Act deals with the relief that a court may grant to the Plaintiff in any suit for misappropriation of Trade Secrets, the reliefs include injunction, damages/accounts of profit, destruction of documents, objects, materials, etc., and pecuniary remedies.
Conclusion
The Law Commission’s effort to recommend the Trade Secrets Bill marks as the first step in safeguarding trade secrets through a codified law. If this Bill progresses and is enacted as an Act this would not only support large corporations but also small businesses like MSMEs and start-ups, leading to enhanced economic growth.
[1] https://www.wipo.int/tradesecrets/en/
[2] 22nd Law Commission of India 289th Report (Part 3) (Para. c)
[3] 22nd Law Commission of India 289th Report (Part 3) (Para.d)
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