Proprietary data

NDA Anatomy™ JC’s guide to non-standard confidentiality agreements. For the OneNDA, see the OneNDA Anatomy →Go uptown Resources: Confidentiality agreement | Confi — Led Zeppelin style | GDPR | Copyright vs. confidence | OneNDA | Common terms | Certification | Confidential information | Confidentiality obligation | Derived information | Disclosed information | Discloser | Exclusivity | Indemnity | No licence | Non-solicitation | Permitted disclosees | Permitted disclosures | Procure compliance | Purpose | Receiver | Remedies | Reps and warranties | Return of information | Term of confidentiality | Index: Click ᐅ to expand: Confidentiality OneNDA Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

Information that you or one of your clients has a legitimate interest in protecting by means of a confidentiality agreement. There are two main categories of this data:

• Intellectual property: Information which is protected by intellectual property rules — trade secrets, creative work and so on; and
• Raw data: Unimproved raw data which didn't involve any creative work and isn’t able to be copyrighted or patented, but which nonetheless the client is hotly keen on keeping a lid on (its own client lists, its trading data, its internal economic performanace data and so on).

Intellectual property is legally protected in itself and without the need for a contract: copyright arises automatically on creation; patents and trademarks when registered, and an intellectual property holder can enforce its rights against the world without having to prove any agreement. Nonetheless, a counterparty might want to reinforce its general intellectual property rights with a contract, though that is usually quite fussy. Intellectual property rights expire — for good reason, and usually far later than they should, in this old bugger’s opinion — and only protect certain things (and don't stop you passing on something that has been legitimately provided to you).

Confidentiality obligations are more comprehensive in some ways and the measure of compensations for breach is quite different. Your remedy for a copyright infringement is an account for profits. Your remedy for breach of confidentiality is damages.

Both tend to be hard to make out where the material infringed is not commercially sensitive.

See also

• Copyright vs. confidence.