On The Trade Secret Protection In Cloud Computing Environment

Cloud computing is both a technology and a service.Cloud computing revolutionized the way of providing information technology services in a new pattern of delivering computing resources.However,the transformation and development of cloud computing technology has also brought economic security issues and legal risks.For enterprises,as the intangible assets,trade secrets are the key factor for maintaining competitive advantage in the market,and they are also important sources of economic benefits.In the context of cloud computing,the protection of corporate trade secrets faces new challenges.First of all,the attribute of trade secrets information in the cloud stored by the enterprise is controversial in the academia.Secondly,it is difficult to determine the infringement of trade secrets in cloud computing environment.This thesis attempts to discuss the protection of trade secrets in cloud computing environment from the aspects of the identification of trade secrets and the determination of trade secrets infringement in cloud computing environment,and propose suggestions for the perfection of Chinese trade secrets protection legal system from the legislative and judicial aspects.Besides the introduction,this thesis is divided into four chapters.As follows:The first chapter,“overview of trade secrets protection in cloud computing environment”.This chapter firstly analyzes the basic characteristics of cloud computing by invoking authoritative cloud computing concept,and proposes that the trade secrets in cloud computing environment show the morphological characteristic of information digitization,the storage characteristic of carrier sharing and the management characteristic of separation of control right.Based on this,the protection of trade secrets in cloud computing environment faces two major institutional dilemmas: legal identification of trade secrets and infringement judgment.The dilemma of the legal identification of trade secrets lies in the uncertainty of the knowledge scope of trade secrets information in cloud computing environment and the difficulty in judging the rationality of confidentiality measures,which leads to the vagueness of the identification of secrecy and confidentiality.The dilemma of the judgment of trade secret infringement lies in the complexity of trade secret infringement behaviour in cloud computing environment,the larger conflict between trade secrets protection and public interests,and the difficulty in proof in trade secrets infringement litigation.The second chapter,“the identification of trade secrets in cloud computing environment”.Firstly,through the elaboration of the legislative provisions on the identification of trade secrets and the operation in judicial practice,this chapter clarifies that the secrecy shall meet two criteria at the same time,namely,“not generally known to the relevant public” and “not easy to obtain”;confidentiality requires “reasonableness” of confidential measures.Based on the general and rational standards of law,the special circumstances of the trade secrets owner should be considered.On the basis,for the judgment of the secrecy in cloud computing environment,it should be given special consideration that whether the cloud service provider has the obligation of confidentiality and the difficulty level in obtaining secret information by other cloud users.For the judgment of confidentiality in cloud computing environment,the security measures of the cloud service provider should be regarded as the confidential measures of the trade secrets owner.With regard to the identification of “reasonableness”,the rights and obligations of both parties to the cloud service contract as well as the technical measures taken by the trade secrets owners themselves should be considered.The third chapter,“ the identification of trade secrets infringement in cloud computing environment.” Trade secrets infringement in cloud computing environment can be roughly divided into three types,namely,illegal acquisition of trade secrets,illegal disclosure and use of trade secrets,and trade secrets information hijacking.In addition,for the coordination between trade secrets right and public interests in cloud computing environment,the EU and the United States have formed relatively mature public interests defense rule to alleviate the conflict between trade secrets protection and public interests in a balanced manner.The public interests defense shall be limited to disclosure and use,and strict restrictions shall be imposed on the objects,methods and procedures for the disclosure or use of trade secrets to prevent abuse of the rule.With regard to the rule in proof of trade secrets infringement litigation,it is more difficult for the trade secrets owners to provide the evidence based on the cloud computing environment.Thus,the proof requirement of the “substantial similarity + contact” rule should be appropriately reduced,and the identification of“contact” requirement should be relaxed.It is sufficient to prove that the respondent has contact conditions.The fourth chapter,“ the perfection of Chinese trade secrets protection system in cloud computing environment”.This chapter puts forward suggestions for perfecting Chinese trade secrets legal protection system from the legislative and judicial aspects.From the perspective of legislative protection,regarding the identification of trade secrets,it is recommended to establish the basic standard of reasonable confidentiality measures for trade secrets and provide a legal reference.Regarding the infringement judgment of trade secrets,it is suggested to increase the type of infringement in which the perpetrator refuses to delete trade secrets in Chinese existing legal framework to regulate new type of infringement in cloud computing environment.At the same time,it is recommended to construct a public interests defense system.The system will clarify the boundary of infringement determination of trade secrets.From the perspective of judicial protection,for the identification of trade secrets,it is recommended to introduce rational human standard in the identification of trade secrets,and to judge whether specific information meets the standard of trade secrets objectively.For the infringement judgment of trade secrets,it is suggested that the “substantial similarity + contact” certification requirement should be appropriately relaxed in the trade secrets infringement proceedings,and the “contact”certification requirement shall be reasonably reduced to “contact possibility” based on the“substantial similarity + contact” rule,which can reduce the difficulty in proof for the plaintiffs.