The impact of trade secrets law on employees and society: In search of a balanced theoretical and legal approach with special reference to Australia and Sri Lanka

Trade secrets are increasingly important information assets in modern innovation and business contexts. However, the theoretical irregularity of trade secrets leads to their identification as neither a fully-fledged IP right nor as a right sitting completely outside of intellectual property law. A major default of the present trade secrets theories is that they are highly concentrated on protecting the rights of trade secrets holders, ignoring the fact that the protection of trade secrets is a polycentric issue that represents many rights including employees’ and wider societal rights. Against this backdrop, this thesis proposes that a human rights based approach may be a promising way to establish a more balanced theory of protecting trade secrets. This research proposes to utilise human rights based theory for two purposes: first, to evaluate the trade secrets laws of Australia and Sri Lanka in order to identify how well they respond to the social and economic needs of employees; and secondly to provide a guide to creating a more balanced trade secrets legal framework in the employment setting. In evaluating laws, a human rights approach shows how legal uncertainties and related practical issues with trade secrets law impact on the successful realisation of employees’ right to work. Moreover, it demonstrates that excessive use of trade secrets may impede societal rights to information and knowledge, and have a negative impact on follow-on inventions. Having evaluated trade secrets laws, this research proposes a legislative framework informed by human rights theory, so that trade secrets law moves beyond merely preserving economic rights to facilitating more fair and robust connections between employers and employees.