Simultaneous Copyright and Trade Secret Protection for Computer Programs
Philip McGarrigle · Santa Clara Law Digital Commons (Santa Clara University) · 1983
ure.When both forms of protection are used simultaneously, the issue arises as to whether the affixation of copyright, which implies a publication, would preclude a claim of secrecy.In spite of these obstacles, this comment will argue that simultaneous trade secret and copyright protection finds support both in case law and in public policy." 2 II.HiSTORICAL BACKGROUND A. Trade Secret and CopyrightTrade secrecy is a branch of unfair competition and originated as a part of state common law.A trade secret is "any formula, pattern, device, or compilation of information which is used in one's business, and which gives him the opportunity to obtain an advantage over competitors who do not know or use it.""The only requirements are actual secrecy and some degree of novelty."A trade secret is given effect when it is agreed to by contract, enforced by a confidential relationship, or when the knowledge is gained by improper means.6 Even though it has the potential for perpetual existence, it may be totally and forever lost once the secret has been inadvertently disclosed.1 7 A copyright is an incorporeal right recognized in the United States Constitution" and granted by federal statute. 1 9 Copyright protection extends only to the surface expression of the work and leaves the idea open for copying. 2 0 Although this 12.For discussions to the contrary, see Luccavelli, The Supremacy of Federal Copyright Law Over State Trade Secret Law For Copyrightable Computer Programs Marked With a Copyright Notice, 3 Coup.