As I was trolling the Pierce Law print collection on interesting trade secret things to blog I noticed several books out of Europe in the late 1990s dealing with "commercial secrets".Thereafter there we few to no books on the topic. Without sitting down with the UTSA, I wonder whether trade secrets are a part of the larger area of commercial secrets. I noticed stories on the web about a new law in Russia and the term being used in China. With most law students keyword searches are the gold standard - so I wonder whether to counsel them to include commercial secrets as alternative search terms. Here's the scoop on the Russian law...

Russia has recently adopted its new Federal Law on Commercial Secrets.On its face, the Commercial Secrets Law appears to pool together a number of basic rules on commercial secrets which can be found in certain existing laws and regulations such as the Civil Code, the Labor Code, Law on Banks and Banking Activity, RSFSR Government Resolution No.35 of 5 December 1991, as well as to introduce a number of new rules. However, the Law also goes farther by clarifying and strengthening certain provisions in the existing rules.

The Commercial Secrets Law determines which information is regarded as a commercial secret. A commercial secret is confidential information (i) which has actual or potential commercial value because it is unknown to third parties, (ii) to which there is no free access on legal grounds and (iii) with respect to which the owner has introduced a commercial secret regime (i.e., has taken measures to maintain the confidentiality of the information).

Historically, certain data could not be considered a commercial secret. RSFSR Government Resolution No. 35 of 5 December 1991 contained a list of such data, which included such items as the foundation documents of a legal entity; information on the number of employees, the payroll system, availability of vacancies; information on environmental pollution; and other items.

The Commercial Secrets Law broadens this list. For example, persons engaged in entrepreneurial activity cannot treat the following information as a commercial secret (and thus cannot refuse to disclose it): violations of Russian law, and findings on liability for such violations; the list of persons entitled to act on behalf of a legal entity without a power of attorney; the indebtedness of an employer with respect to salary and social payments.

The purpose of such broadening is to make companies more transparent and simplify the work of tax and law enforcement authorities. In addition, a commercial secret owner cannot refuse to disclose the commercial secret to judicial and law enforcement authorities.

Russian law recognizes and provides specific protection measures for other types of "secrets," such as, for example, state, bank, audit and advocate secrets.

The Commercial Secrets Law provides specific protection measures for commercial secrets. Moreover, it states that information shall be treated as a commercial secret provided that the holder of such information has taken all necessary measures to protect its confidentiality. Conversely, if the information owner has failed to undertake all such measures, the information may not be protected as a commercial secret.

The Commercial Secrets Law lists the following measures that an owner must undertake to protect its confidential information:

* determine the list of data to be treated as a commercial secret;
* limit access to the protected information;
* keep a record of all persons allowed access to the protected information and/or to whom the protected information has been disclosed;
* include a confidentiality clause in employment contracts and agreements with third parties; and
* affix a "Commercial Secret" notice to documents containing commercial secrets; and this notice should contain information on the owner (for a legal entity Ц full name and address, for an individual entrepreneur Ц first name, last name, patronymic and residential address).

Of course, in addition to now being legally required for commercial secret protection in Russia, such steps are prudent for any owner of confidential business information.