Emerging and Enduring Issues of Trade Secrecy- A Sri Lankan Perspective

Trade secrets amount to capital, and they are rapidly eclipsing other sources of competitive advantage in the knowledge-based economy, which is largely reliant on knowledge assets rather than physical assets. The TRIPS Agreement that establishes the modern global standards of intellectual property (IP) protection does not provide for a globally unified protection of trade secrets. However, there is a recent movement in the European Union and the United States (US) for more harmonised legal regimes. The utility of a trade secrets' regime in Sri Lanka is emerging against the backdrop of the large-scale spread of small-and medium-sized enterprises, and the belief that the patent regime does not cater for domestic innovation needs. This paper argues that despite the fact that Sri Lanka has enacted a TRIPS-compliant trade secrets legal regime, the absence of provisions to preserve the confidentiality of trade secrets in the legal proceedings has negated the whole purpose of this law. In addition, this paper argues that over-reliance on trade secrecy challenges the established societal and political-economic beliefs and public interests considerations in the country. This paper concludes by recommending the introduction of legislative provisions to ensure the confidentiality of trade secrets during legal proceedings and to improve the lawful means of acquiring and using trade secrets, while balancing the interests of trade secrets holders and society.