| The use of public information to form new information leads to the problem of whether to protect it legally and how to protect it because it is difficult to judge whether it still belongs to the public domain.Under the background of adjusting the rights and interests of similar data and information through the anti unfair competition law,protecting and using public information to form new information through the trade secret system is in line with the law of using the competition law to adjust market competition relations,avoiding the establishment of broad absolute rights to protect public information and reprocess it to form new information,so as to realize the balance of interests of public data combination producers,the public and subsequent users.Reviewing the trade secret protection practice of using public information to form new information,it can be found that the reprocessing of public information to form new information comes from the contradiction between the characteristics of the public domain and not known to the public,which leads to the relevant judicial cases to abandon the use of trade secret system and turn to Article 2of the anti unfair competition law to adjust relevant disputes.The key to solve this contradiction is to accurately understand the principles and standards of confidentiality judgment.In order to solve this contradiction,relevant judicial interpretations and regulations put forward the judgment standard of "not generally known or easily available to staff in their field".However,in the specific judgment of confidentiality,this standard appears subjective and lack of operability,because "staff in the field","general knowledge" and "easy access" in the above standards are not accurate legal concepts.Especially when discussing the secrecy of new information formed by public information,these concepts are more lack of operability.The relevant provisions of the supreme law also put forward that the sorting,improvement and processing of public information to form new information is not known to the public.At this time,it is clear to what extent the new information belongs to the new information referred to in the provisions,which directly determines whether the information is confidential.In addition,in the specific judicial practice,because the judicial interpretation fails to divide the secret burden of proof,the court has different division of the burden of proof in the trial.In view of the above problems,when understanding "universal knowledge" and "easy access",we should first consider whether there is a situation of universal knowledge or easy access clearly stipulated by judicial interpretation and regulations.When it is difficult to confirm whether the information belongs to these situations,further consider the difference between the information and the well-known information,and consider the difficulty of forming the information.Novelty criteria should not be used to evaluate this difference and difficulty.The evaluation of this difficulty should consider not only the investment made by the party advocating the protection of trade secrets,but also the difficulty of others forming the information.When this difference is difficult to describe,the influence of public information processing means on the confidentiality of new information can be considered.The unique reprocessing purpose,mode and overall form can make the information processed and produced beyond the information in the public field and become new information in the sense of relevant regulations.Secondly,it is necessary to limit the subject of confidentiality judgment in the identification of confidentiality.In the digital economy environment,the "staff in the field" should be based on a broad standard.Summarize the relevant views of "people within the scope of usually dealing with the information involved","peer competitors" and other scholars proposed in trips and the EU trade secret protection directive.Under the broad limit standard,"staff in the field" refers to those who have reasonable business motivation in similar fields and pay attention to the unprocessed public information.Finally,although the legal and judicial interpretation is to clarify the division of the burden of proof of confidentiality,it can still be deduced from the fact that the obligee of trade secret stipulated in the judicial interpretation should provide "evidence that the trade secret meets the legal conditions",and the obligee should prove that the information involved in the case is confidential.After clarifying the relevant concepts,in order to improve the confidentiality identification of new information formed by using well-known information,we can consider whether to form competitive advantage to identify confidentiality;The obligee is required to provide evidence that can prove the distinction between the information involved and the public information,so as to avoid the the plaintiff from proving that negative facts do not exist. |
