On 11 May this year, a bill amending the Act on Combating Unfair Competition and certain other Acts was submitted to the Sejm. It implements the EU Directive on protection of undisclosed know-how and certain business information in Polish law.
Amendment to Article 11 of the Unfair Competition Act
The primary change is to the definition of an act of unfair competition. The proposal would cover not only disclosure or use but also acquisition of trade-secret information, particularly through unauthorised access. Acquisition would constitute unfair competition even if the information were never subsequently disclosed or used.
The bill also clarifies the definition of a trade secret. Rather than simply information for which necessary confidentiality measures were taken, it would mean information ‘not generally known to persons who normally deal with that kind of information or not readily accessible to them’, provided measures have been taken to preserve confidentiality.
The proposal also treats as unfair competition the acquisition of trade-secret information by a gratuitous legal transaction, directly or indirectly, from someone who disclosed it in breach of a statutory prohibition, even where the acquirer neither knew nor could have known, exercising due diligence, of the use of the trade secret.
Acquisition through independent discovery, creation or observation is not unfair competition. Nor is acquisition, disclosure or use of trade-secret information to protect a legitimate interest recognised by law.
New remedies
Another proposal would allow courts, in justified cases, to order a trade-secret infringer to publish information about the judgment or the judgment itself.
The court may also order payment to the injured party of an amount no higher than the licence fee that would have been payable had permission been granted to use the trade secret, for a future period no longer than the duration of its secrecy.
Finally, the court may order the infringer to pay an amount equivalent to the remuneration that, at the time the claim is made, would be due for the rights holder’s consent to use the trade-secret information.
The court may grant all these remedies at the request of the party harmed by unfair competition.
Changes to criminal liability
Another important proposal introduces criminal liability for using or disclosing a trade secret learned during court proceedings in which the person participated. This applies to all participants, including parties, judges, experts and court staff, and to non-participants who accessed the case file.
