About nine months ago my office produced model responses for the European Commission trade secret consultation which lapsed on March 8 2013. You can find our model responses in three languages on this page. The summary of the consultation responses by the European Commission are now released. 

To my great joy, the fact that we had made model responses helped a lot of citizens to be heard in the European Union! 39% of all respondents were citizens according to the Commission summary. The Commission goes on to say that "Nearly 80% of respondents that do not see a need for an EU initiative come from Germany, Belgium or Sweden." 173 of the respondents came from these countries, and they are bound mostly to be citizens.

The Commission is not unaware of our efforts to help citizens find out about the consultation and answer. They are, however, careful about using that to draw any results. And so, 46% of all repsondents want trade secret action at the EU level - this also means 54% of all respondents don't. The vast majority of SMEs come from Spain according to the European Commission papers - is that because of a similar SME mobilisation effort in Spain as ours for citizens? The business organisations that replied were mostly based in France according to EC papers: France is just now the only country in Europe which explicitly puts trade secrets under the same umberella as industrial property rights. Virtually all other countries see trade secrets as a form of competition law arrangement, or as a totally separate entity in their law (Sweden has a specific law dedicated to trade secrets, but it's not an intellectual property law).

It is emphasized how important trade secrets are for SMEs, but something being very important presently under the law is not necessarily a reason to change the current law. We know that the idea of trade secrets as intellectual properties are advanced mostly by the semi-conductor industry and the pharmaceutical/biotech industries. It is also clear that particularly super-huge internet and software companies device very aggressive trade secret strategies. Principally, it's ok for a company to have secrets but it's their problem. It is not the problem of the public and it is not the problem of the legislator.

Propertification of trade secrets also have other problems: in many member states, such as the UK or Sweden, we are seeing an increased military interest in protecting trade secret assets of domestic companies. This would run contrary to the idea of an integrated digital market for Europe. If member state military institutions suddenly get the prime excuse to take  tcontrol over the efforts of their own domestic champions online, integration will become much harder and citizens' trust for any commercial activity online risks suffering.

One constructive direction for the European Commission to take these results in would be to strengthen competition rules and the cooperation between competition authorities. The only useful thing to do about trade secrets at this time is to push them further into the competition law field of civilian investigations. With an increasing amount of companies relying on information and communications technologies to do business, and the military and security agencies hovering closely above those infrastructures waiting to settle down it would be seriously constructive to act for a strongly consolidated civil law arrangement for trade secrets. That means no criminal sanctions, no police authority, classing of trade secret appropriation as illoyal competition if anything. But also to ensure better flexibility on the labour market we should ensure to appropriately protect employees' right to make experience while in a workplace.

You can find out more about the Commission's trade secret efforts on this webpage. One can also check the bias of respondents on this page. Note that the Commission equalizes organisations like EDRi with the "European Communities Trademark Association" (for instance).