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An idea in itself - however original or new it might be - cannot be protected by copyright or any other intellectual property rights. This is due to the principle of free trade and the free circulation of ideas.
However, the expression of an idea that has taken a certain form, whether this be literary, musical, artistic, audiovisual, functional or other, can be protected. The concrete development of an idea, concept or method can be protected, for example. Protection does not cover only the final form of the work. A sketch, a plan or a project also meets the condition of taking shape.
It is more difficult to determine when an idea is sufficiently concrete in a specific expression to be protected.
- The idea of designing a canal without a border is not protected in itself, but the plans for this canal or the original sketch that lays out its design, even in draft form, can be protected by copyright.
- A method for teaching music theory to children is not protected in itself, but the notes made by the teacher and the works that set out this method can be protected by copyright;
- A concept for a television or radio programme cannot be protected as such, but the concrete development of the ideas at the origin of this programme and the way in which the programme is organised so as to give shape to the concept, can be protected by copyright.
If no such concrete form exists, the ideas can only be protected by secrecy or by a contract.
For example, when presenting an interesting idea or concept to a business, a confidentiality clause within a contract can be used to state the extent to which the data provided can be used.
If an idea or concept is slavishly copied or used, tort law, criminal law or labour law, unjust enrichment or unfair competition law can be used to defend your idea.
Protecting commercial information and know-how
Business information and know-how consists of all technical knowledge which is transferable, not immediately accessible to the public and not covered by a patent, as well as any other information which has value because it is secret and which has been the subject of reasonable steps by its lawful holder to keep it secret. To be precise, this may be many different kinds of information, such as:
- research data,
- client files,
- work processes,
This is knowledge that can be transferred to third parties and can also represent a high economic value. It may, therefore, be important to do everything possible to prevent competitors from obtaining this commercial information and know-how.
There is no specific intellectual property right for protecting commercial information and know-how. They are, therefore, protected in the same way as simple ideas, i.e. by secrecy or specific contracts.
Indeed, a business can pass on its expertise to another party, in particular because it is authorising this party to use one of its inventions and the use of this invention requires specific know-how. These agreements for the transfer or communication of know-how generally contain confidentiality clauses and a clause prohibiting the filing of a patent for this know-how, and provide for remuneration for the communication of this know-how.
Confidentiality of medication-related data
Pharmaceutical companies must pass on a large amount of data relating to the creation of medication when they request authorisation to market it. The law states that the authorities responsible for this marketing authorisation must keep this data confidential.