Protejarea contractuală a algoritmilor dintr-un software – între secret comercial și informații confidențiale
The contractual protection of algorithms in software – between trade secret and confidential information

Summary/Abstract: The present article examines some of the elements of the legal regime applicable to the protection of software algorithms (otherwise falling outside the realm of copyright or patent law) by keeping them confidential. This study focuses on the tension between the regime under Intellectual Property Law (construing the indirect protection of trade secrets) and that of Competition Law (which sees contractual obligations imposing confidentiality as more problematic as they restrict competition on the market, meaning that their legal regime is assimilated to that applicable to non-compete clauses). Thus, starting from the recent amendments of Law no. no 11/1991 that set up a distinction between confidential information and trade secrets, the study proposes an interpretation of the two concepts which reconciles (i) the need not to limit in time the legal protection of trade secrets as long as a piece of information is likely to qualify as such (in particular, as long as the information continues to retain its intrinsic economic value given by its secret nature) and (ii) the need to comply with Competition Law requirements regarding the time limitation of confidentiality obligations. The conclusion reached by the article – according to which a temporal limitation of contractual obligations of confidentiality is imposed only with regard to confidential information, and not with regard to trade secrets is confirmed, incidentally, by European provisions on competition law.

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