CRIMINAL LAW PROTECTION OF TRADE SECRETS: AN ANALYSIS OF THE SOLUTIONS CONTAINED WITHIN THE UNITED STATES LEGISLATION

Abstract

The modern society is characterized by the domination of the so-called "knowledge-based", i.e. economies whose functioning is based primarily on intellectual capital, rather than on physical assets. In such economies the possession and application of trade secrets has proven to be one of the most important aspects that contribute towards achieving competitive advantage. It is, therefore, not surprising that the number of companies that decide to protect their intellectual property rights with trade secrets is ever-increasing. What on a contrary appears as striking is that up until recently there were no specific civil or criminal legal mechanisms able to provide adequate protection in the cases of unlawful acquisition of the trade secrets. The effect that the unlawful acquisition of these assets has on the businesses and the process of innovation in general, can on occasion be detrimental, thus the questions related to its prevention and suppression require additional attention within the theoretical studies. Hence, this paper focuses on a partial analysis of some of these issues in terms of cases when the unlawful acquisition of trade secrets can be qualified as a criminal offense. The conducted analysis follows the solutions contained within the legislation in the United States (US) as one of the rare legal systems in which there is a special criminal-legal instrument, namely the Economic Espionage Act (EEA), which was enacted in 1996. The Act contains special provisions for sanctioning the cases where the trade secrets were acquired for gaining a personal or benefit for a third person. The enactment of such provisions largely contributes towards diminishing the legal uncertainty in resolving the cases brought to prosecution, but at the same time decreases their number as the severe penalties are usually (even-though not always) able to deter the subjects from their intention to commit such crimes.