From Law 3 6 0 :
The U.S. Chamber of Commerce has unveiled a proposal aimed at creating tough rules for the theft of trade secrets within the context of the Trans-Pacific Partnership, including the installation of criminal sanctions, which many TPP countries currently lack.
The Chamber on Monday began circulating its proposal among TPP negotiators, who are continuing the 19th round of talks this week in Brunei. The business group said it would ideally like to see sweeping legal changes in certain TPP countries but that the multilateral talks provide an opportunity to bind all members to implement strong deterrents.
“At a minimum, TPP countries should include firm commitments to provide robust trade secret protection, with criminal penalties designed to sufficiently deter a growing problem,” the group's paper said. “The value of trade secrets to national economies, businesses and innovation is too great to be ignored in these negotiations.”
The proposal, which was prepared for the organization by Covington & Burling LLP, comes amid increased hand-wringing within the business community about the challenges posed by trade secret theft. The cries from industry groups prompted the Obama administration to launch a new plan to fight trade secret theft earlier this year.
The proposal for trade secrets within TPP includes an appendix laying out the varying criminal and civil enforcement options available to TPP partners in an effort to show the need for harmonization.
Looser protection of trade secrets is not limited to the smaller, developing nations negotiating the TPP. Canada, Australia, Malaysia and Singapore are among the negotiating countries that have no explicit laws criminalizing the theft of trade secrets whatsoever, the Chamber said.
Even countries that do criminalize trade secret theft carry wide differences in their sentencing guidelines. For example, Peru's laws allow for imprisonment of no more than two years, while Mexico allows for sentences of between two and six years. By contrast, the U.S. criminal penalties under the Economic Espionage Act range from 10 to 15 years, the Chamber explained.
The lack of consistency between countries' trade secrets regimes often makes prosecution of cross-border trade secret infringements exceedingly expensive, according to the business group. As such, the final TPP deal should include a framework for better information sharing between governments.
The TPP should also require countries to justify any requests they make for companies to disclose business proprietary information as a condition of market access, which can lead to state-sponsored trade secret theft, the group said.
The proposal also highlighted recent shortcomings in trade secret prosecution in TPP countries juxtaposed against prosecution with formidable trade secret laws in countries like the U.S. to show the benefits of strong enforcement.
“The significant value and increasing vulnerability of trade secrets, coupled with demonstrated insufficient legal remedies to combat this growing threat in a number of jurisdictions, provide compelling reasons to secure more robust trade secret protections, particularly criminal penalties, in the TPP,” the Chamber said.