by shagie | 2026-03-02 22:01:38+00:00
https://www.wipo.int/web-publications/wipo-guide-to-trade-se...

Section 3.2

> As mentioned above, code is the language used to write software programs, contains the implementation details of algorithms and can reveal crucial business information about how data is processed and utilized. Unless an open-source strategy is pursued, protecting the confidentiality of code and algorithms is paramount to prevent unauthorized individuals from understanding or reverse-engineering proprietary software in order to build and defend competitive edges over competitors. In practice, techniques such as code obfuscation, encryption, and strict access controls are applied to maintain the confidentiality of code (and the algorithms behind it) and to prevent unauthorized access or copying.

> There are some industry-specific implications, but it is generally far less common to share code and/or algorithms between businesses than, for example, sets of processed data. This indicates and emphasizes the commercial value attributed to, and the level of secrecy applied to, code and algorithms and opens a primary playing field for digital data trade secrets.

> Copyright is another form of intellectual property protection available to code and algorithms. However, it should be noted that certain jurisdictions do not permit an owner to assert both trade secret and copyright, especially if the copyrighted software discloses a majority of the source code or the “proprietary” portions. In the Capricorn case, the court held that the source code owner was barred from asserting trade secret protection because the code was also registered as a copyright, and thus available to the public. Therefore, the source code owner should carefully consider the pros and cons of each type of protection.

Key there is the distribution under copyright may conflict with trade secrets. Additionally, this is sharing internal code. {BigCorp}'s build setup may be a trade secret for how it integrates certificates into the final build. However, the code and the final build are likely covered under copyright. Trade secrets don't prevent me from decompiling an application that I've legitimately received and publishing the jump tables for internal calls (the classic Undocumented Windows: A Programmers Guide to Reserved Microsoft Windows Api Functions).

Additionally 1.3 in https://www.wipo.int/web-publications/wipo-guide-to-trade-se...

> Trade secret holders can seek protection only where unauthorized disclosure, acquisition or use of their trade secrets is made in a manner contrary to honest commercial practice. In other words, they do not enjoy the type of “exclusive rights” that are generally available for other categories of IP. This will be discussed in the next section.

> ...

Section 2.2

> Trade secret protection does not grant exclusive rights on the protected information, but regulates the behavior of parties and prevents others from engaging in wrongful conduct that is against honest commercial practice. In essence, when unauthorized third parties acquire, disclose or use trade secret information with unlawful, improper, dishonest or unfair means, it is deemed misappropriation of trade secrets.

> In general, a trade secret owner cannot prevent others from independently developing and acquiring the protected information on their own and from using or disclosing that information. This is because conducting one’s own R&D or own market analysis etc. to develop valuable information is usually deemed honest commercial practice. However, once a patentee X obtains a patent on its invention A, in principle, another person Y using the same invention A infringes the patent, even if Y came up with the invention A independently by its own, without any knowledge of the invention of the patentee X. Therefore, trade secret protection does not confer exclusive rights like patent protection does.