Since Habr is a resource associated, first of all, with the IT sphere, then I will give examples related to information and computer technologies. It is important to understand that information technology and computer information technology are two different areas that have both similarities and differences. Here, on Habré, we have already considered the difference between them, and in this I agree with the author of the publication.
A few words about basic concepts
So, let's figure out how much a trade secret costs. Any value is determined only when we sell something. Therefore, it is important to identify possible participants in this process.
Any sale involves:
- Owner.
- Seller.
- Customer.
- Consumer.
The buyer and the consumer can be the same person or different people. When it comes to information, there is no clear separation from the point of view of the law between them.
Consumer - a citizen intending to order or purchase, or ordering, purchasing or using goods (works, services) solely for personal, family, household and other needs not related to entrepreneurial activity;Information is not property, therefore, from the point of view of the law, issues of its ownership do not divide buyers and consumers into different categories.
(Law of the Russian Federation of 07.02.1992 N 2300-1 (as amended on 24.04.2020) "On protection of consumer rights")
For each of the participants in the process of selling a trade secret, its cost will be different. Since we are talking about information, it does not have a uniquely defined price. Unlike material goods, where you can calculate the cost, taking into account the materials used and the characteristics of production, information is something ephemeral that cannot be “touched with your hands”. For someone it will have one value, for someone else.
Therefore, it makes sense to measure the price of information in terms of legal responsibility and responsibility to the state.
Owner cost
When it comes to information, most often they sell and buy documentation or databases, such as customer databases. In the case of a B2B business, the customer base is practically the finished work of the entire company. The sales department has been collecting this information for years. In order for a client to be in this database, he must go through certain stages, the company's employees work, collect information about the client, contact information of the decision maker, information about needs and much more. Therefore, we can say that this information is priceless for the owner, and it is impossible to overestimate it.
If the customer base falls into the wrong hands, and the new owner is able to use it effectively, then he may even deprive the owner of the business.
What else is important information for the owner? In the event of a data leak, re-accumulating the database is extremely difficult, and often even impossible. If a company operates within a certain market, where the number of players is limited, as is the case in B2B, it becomes impossible to recruit a similar base again.
Theft of the customer base is especially common in sales and intermediary services. The base of buyers of tangible products from a manufacturer is usually less interesting. Each product, even if they belong to the same group, is unique. Customers have already made their choice in favor of a certain manufacturer, so the use of such a database by competitors is ineffective.
A separate category of information sale is technology, authoring, layouts or technical documentation. Here we are already talking about industrial espionage, it is much less common than leaks of customer information. It is not so easy to sell such information, and the protection of such information is taken much more seriously. We'll talk a little about this type of sale in the section on liability of the parties.
In turn, industrial espionage, which is expressed in the collection of information constituting commercial, tax or banking secrets through theft of documents, bribery or threats, as well as in any other illegal way, constitutes a crime under Article 183 of the Criminal Code of the Russian Federation.
How much is the information for the seller
The situation here is not so straightforward. First, the seller and the copyright holder may be one person. Such sales are usually not advertised, and the transaction itself is formalized legally. The value in this case is determined by the owner, it also becomes the value for the buyer.
Legal sale: features
Legal sale is possible even if the seller does not own the information. For example, we all register on the sites and put a "tick" on the consent to the processing of data. Few people read the offer agreement itself, where it is very often spelled out that you consent to the transfer of data to third parties for processing and use. After obtaining such consent, the seller can legally sell this data.
This is what Facebook does regularly, and it has become widely known. Sells various information to Google and many other companies that specialize, among other things, in the collection of information.
Another example of legal selling is lead generation. When ordering this service, the company advertises on your behalf, collects leads, and then transfers them to you as a customer. At the same time, the concept of commercial secrets and the ownership of information to one or another owner are extremely blurred. No matter what agreements you sign, in the case of selling leads to third parties, it will be almost impossible to prove anything.
Illegal sale
For the seller, in this case, information is often worthless. They mainly sell customer databases, less often - information on transactions, even less often - information about products. Regardless of the essence, the situation is about the same.
An employee of the company has access to certain proprietary information and decides to use this for sale. This may be an employee who continues to work in the company, then he sells the data in portions. Those. information gets to him, and he gives it to the side.
For example, a client calls, an employee says that “we don't have such products, but company X has”. And it sends information about it to its customers from Company X. A very subtle moment arises here. On the one hand, the information about the new client at this moment has not yet become a trade secret, perhaps it will not even get into the company's databases. On the other hand, it is commercial information that is important for business.
An even more common case is when an employee leaves and takes the database with him. He copies it, unloads it somewhere, and then transfers it to competitors.
Important! If a person does not understand responsibility, then the information for him is practically worthless, it goes to him for free. And the sale turns out to be a mega profitable deal. And if he has not yet signed any non-disclosure obligations, this data turns out to be really free for him, and he will not bear any responsibility.
Now an increasing number of companies are beginning to be attentive to the issues of protecting trade secrets. Unfortunately, very often this happens after the dismissed employee has time to sell the client base. Then they begin to finalize the documentation and implement software solutions with additional protection. To avoid such problems, it is better to take care of protecting your trade secret in a timely manner. Of course, this does not eliminate leakage by 100%, but it significantly reduces its likelihood.
Cost to buyer and consumer
When buying any information, its value is determined by how useful it is to the buyer and whether he can use it profitably. In some cases, the purchase of data can solve the problems of the business, make a profit, and then its objective value is much higher than the cost requested by the seller. In other cases, the database is of little use, especially if the vendor resells it multiple times. It is difficult to talk about any objective rating system here.
Objectively, the value of a trade secret can be estimated based on the responsibility for its sale. If a person understands that when selling information for 30 or 100 thousand rubles, he risks getting not only a fine or dismissal, but even a criminal article, the likelihood that the offered price will seem attractive to him is noticeably reduced. We will talk about who is responsible for what under the law, as well as how to protect trade secrets, in the next article.