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Confidentiality Agreements Under Intellectual Property Law

 

Many of the people who possess intellectual property rights may not have the funding or other resources to make the property available to the public, or even to register the property; so, many times, they approach individuals or institutions to assist in the commercial and administrative processes.


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The law ensures that the owner of the right is sufficiently protected from the breach of confidentiality by the person to whom she or he discloses information about the intellectual property.

The Basic Requirements For Confidentiality

  1. The Necessary Quality Of Confidence

In order to enforce a confidentiality agreement, the claimant must show that the information disclosed had a necessary quality of confidence. This means that the information itself must be such that the giver would not make it available to just anybody and that the receiver was expressly or impliedly precluded from disclosing.

Therefore, in order for the information to have the necessary quality of confidence, the giver of the information must believe that disclosure of the information by the receiver would affect his/her position significantly enough to reasonably require a level of confidentiality.

  1. Obligation Of Confidence

While the nature of the information must be that it is confidential, the information must also be given under circumstances that express or imply an obligation of confidence upon the receiver.


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This may be in the form of a contract or any other type of agreement or understanding between the parties. The nature of the relationship between the parties may also be indicative of an obligation of confidence.

  1. Unauthorized Use Of The Information

In addition to the confidentiality and the obligation imposed by it, the receiver of the information must have made unauthorized use of it.

Therefore, where the information is confidential and is given under circumstances that impose an obligation on the receiver thereof, there will be no breach if the giver of the information had authorized the receiver to disclose or use the information in a particular way, and the receiver does not exceed that authority.

It should be noted that the state of the defendant’s mind is irrelevant, but it may become relevant when the court determines the plaintiff’s remedy.

Defences Available For The Breach Of Confidentiality

There are certain defences available that will discharge the defendant from liability, despite the existence of all the basic requirements for confidentiality. The first of these is where the disclosure of the information is for the public interest. Here, the court balances the need for confidentiality with the public interest to be protected in determining whether or not the defence will stand.

In addition to protecting the public interest, the courts will also discharge the defendant of liability where the information is of a grossly immoral nature. This is also regarded as part of the necessity to protect the public interest.

Conclusion

Intellectual property rights are propriety rights to intangible property that can result in the production of tangible items. They include the right to enjoy certain benefits in respect of the products of a person’s intellectual exertion. The rights enjoyed by intellectual property owners include the right to use and reuse, distribute, and adapt the protected material.

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Foluke Akinmoladun

Foluke Akinmoladun is the Managing Solicitor of Trizon Law Chambers. She has been a legal practitioner for 13 years and has experience in a wide range of commercial matters. She is a certified mediator, a member of the Chartered Institute of Arbitrators(UK), holds an Advanced Diploma in Accounting from the Association of Chartered Certified Accountants (UK) and is also a tax consultant. She is a dispute resolution expert, handling commercial disputes from negotiations all the way to litigation (if need be).

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