Zimmerman, Diane Leenheer --- "Trade Secrets and the ‘Philosophy’ of Copyright: A Case of Culture Crash" [2011] ELECD 554; in Dreyfuss, C. Rochelle; Strandburg, J. Katherine (eds), "The Law and Theory of Trade Secrecy" (Edward Elgar Publishing, 2011)

Book Title: The Law and Theory of Trade Secrecy

Editor(s): Dreyfuss, C. Rochelle; Strandburg, J. Katherine

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208996

Section: Chapter 13

Section Title: Trade Secrets and the ‘Philosophy’ of Copyright: A Case of Culture Crash

Author(s): Zimmerman, Diane Leenheer

Number of pages: 33

Extract:

13 Trade secrets and the `philosophy'
of copyright: a case of culture crash
Diane Leenheer Zimmerman*


Except for a brief flurry of interest a quarter century ago, the nature of
the interface in the United States between trade secrecy and copyright has
rarely been thought to merit more than a passing reference in the most
thorough of intellectual property casebooks. But both the expansive notion
of what can constitute a trade secret and current debates about how best
to understand copyright's theoretical and constitutional underpinnings
suggest that the subject is worthy of further exploration. Developments in
the law over recent decades have pulled these two philosophically distinct
forms of intellectual property into one another's orbit, and the result has
been what you would expect if two cars were headed toward one another
at high speed in the same traffic lane: a `crash' of cultures.


I. NATURE OF THE PROBLEM

Most commonly, trade secrets1 involve methods or formulas or know-how
that may or may not be eligible for patent protection, but that certainly
do not qualify for copyright with its proscription against protecting ideas
or factual information.2 There are, however, instances in which the trade
secret inheres in a particularized mode of expression, and in those cases,
the secret material does fall within the subject matter of copyright. For
example, the source code version of a computer program has been rec-
ognized as a kind of literary work that fits within the scope of copyright.
At the ...