236 Canterbury Law R eview [Vol 22, 2016]
of copyright, patent and trade marks.1 at is changing. In Europe, the EU
Trade Secrets Directive seeks to harmonise the law governing the protection
of trade secrets across Europe.2 In the United States, a federal law on trade
secrets has recently been introduced.3 At an international level, the Trans-
Paci c Partners hip,4 and negotiations concerning the Trans-Atlantic Trade
and Investment Partnership have also put trade secret protection into focus.5
e increased attention given to trade secret protection is linked to policy
goals a bout promoting innovation.6 Eective protection of trade secrets is
also said to encourage collaborative research between traders.7 e evidence
for these benets, at least in Europe, may be equivocal.8 However, at a local
level, evidence and anecdotal reports indicate that New Zeala nd rms do
use and value secrecy as a way of preventing appropriation of innovation by
others.9 Trade secrets, then, are important – and increasingly so. Yet, when
one comes to assess the nature and ecacy of New Zealand ’s law concerning
the protection of trade secrets, one may be struck by the lack of explicit
mention of the term trade secret in the “law books”. Under the civil law,
there is no legislation governing the protection of trade secrets. is raises
the question whether, despite its widespread use, the term trade secret has
any legal meaning. is article seeks to answer this question by determining
what, if anything, the term trade secret means under New Zealand law and
how this aects the legal protection of secret commercial information.
I claim that under New Zea land law the term trade secret has no settled
doctrinal meaning and is moored in some ambiguity. One of the reasons for
1 Sharon K. Sande en “e Cinderella of Intellect ual Property Law: Trade Secre ts” in Peter K.
Yu ed Intellectual Propert y and Information Wealth: Issues and P ractices in the Digital Age ( Vol
2) (Praeger Perspect ives, Westport, Conn 2007) 399 at 399: “In m any ways, trade secret law
is the Cinderell a of the intellectual proper ty law eld”.
2 Directive (EU) 2 016/943 of the European Parl iament and of the Council of 8 June 2016 on
the Protection of Undisc losed Know-How and Business In formation (Trade Secrets) Aga inst
eir Unlawfu l Acquisition, Use and Disclosu re [EU Trade Secrets Directive].
3 Defend Trade Secrets Ac t of 2016 [DTSA].
4 See Trans-Pacic Par tnership (signed 26 Februar y 2016) Chapter 18, art 18.78.
5 SI Akhta r and VC Jones “Transatla ntic Trade and Investment Par tnership (TT IP)
Negotiations” (Congressional Repor t R43387, 4 February 2014, Congressional R esearch
Service) avai lable from at 35.
6 For example, one of the justic ations for the EU Trade Secret s Directive is th at protecting
trade secret s “allows creators and in novators to derive prot from their c reation or innovation”
which is “impor tant for busines s competitiveness a s well as for rese arch and development,
and innovation-relat ed performanc e”, see EU Trade Secrets Directive , Recital 2. Sim ilarly,
the DTSA is cha mpioned as a mechanism to promote in novation. See Executive Oc e of the
President “Statement of Admini stration Policy: S. 1890 – Defend Trade Secret s Act of 2016”
(4 April 2016): “Eective protect ion of trade secrets promotes innovat ion…”.
7 EU Trade Secrets Direct ive, Recital 3.
8 See the comments of Tanya Aplin “A Critica l Evaluation of the Proposed EU Trade Secrets
Directive”  4 IPQ 257 at 259-260.
9 Basil Shar p and Owen Morgan R eview of the New Zeal and Intellectu al Property Syst em
(Auckland Un iservices Ltd, Auck land, 22 April 2010) at 84: “[according to an on line survey]
… condential ity agreements are rated the hi ghest in terms of protecting in novations. is
nding is suppor ted by the large majority of rms t hat would choose ‘secrecy’ a s a means of
protecting a new a nd non-obvious invention”.