Synthetic Law

ESG Reporting may impact your IP and trade secret policies

Oct 23, 2023

An interesting reference to intellectual property and trade secret rights can be found in the draft Commission Delegated Regulation (EU) .../... supplementing Directive 2013/34/EU.  

.7 Classified and sensitive information, and information on intellectual property, know-how or results of innovation  

105. The undertaking is not required to disclose classified information or sensitive information, even if such information is considered material. 

106. When disclosing information about its strategy, plans and actions, where a specific piece of information corresponding to intellectual property, know-how or the results of innovation is relevant to meet the objective of a Disclosure Requirement, the undertaking may nevertheless omit that specific piece of information if it: (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) has commercial value because it is secret; and (c) has been subject to reasonable steps by the undertaking to keep it secret. 

107. If the undertaking omits classified information or sensitive information, or a specific piece of information corresponding to intellectual property, know-how or the results of innovation because it meets the criteria established in the previous paragraph, it shall comply with the disclosure requirement in question by disclosing all other required information. 

108. The undertaking shall make every reasonable effort to ensure that beyond the omission of the classified information or sensitive information, or of the specific piece of information corresponding to intellectual property, know-how or the results of innovation, the overall relevance of the disclosure in question is not impaired. 

Brussels, 31.7.2023  C(2023) 5303 final ANNEX 1  ANNEX  to the  Commission Delegated Regulation (EU) .../... supplementing Directive 2013/34/EU of the European Parliament and of the Council as regards sustainability reporting standards  

🔑 Practical Takeaways:

1️⃣ Companies must have a trade secret policy. It's challenging to prove the criteria of a trade secret under the Trade Secrets Directive.

2️⃣ The term "sensitive" information isn't defined, raising questions about its interpretation. This needs to be fixed before going live with the regulation. 

3️⃣ Significant consequences await companies that don't correctly mark trade secret information, potentially leading to loss of protection under trade secret laws. 

Stay informed and ensure your company's compliance! 💼

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