Confi Anatomy

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Confi Anatomy

Resources: Confidentiality agreement | Confi — Led Zeppelin style | GDPR | Copyright vs. confidence | |
Common terms | Certification | Confidential information | Confidentiality obligation | Derived information | Disclosed information | Discloser | Exclusivity | Indemnity | Non-solicitation | Permitted disclosees | Permitted disclosures | Purpose | Receiver | Remedies | Reps and warranties | Return of information | Term |

The anatomy of the all-singing, all dancing confidentiality agreement. Perhaps the very apex of legal technology in this information age.

On the distinction between copyright and confidence

The key thing is to distinguish between breach of copyright and breach of confidence. The former is an intellectual property right over the form of information; the latter a contractual right over the substance of information.

  • Breach of copyright: Copyright subsists in the particular articulation of the information, rather than in the information per se. To breach of copyright is to deny a copyright owner the commercial benefit of its creation: e.g., by accessing for free something the copyright owner wants you to pay for. In other words I can’t copy Harry Potter and the Philosopher’s Stone without J.K. Rowling’s permission, but I can tell you the plot.
  • Breach of confidence: Breach of confidence is less about the form of the information and more about its substance: If I have signed a confidentiality agreement I can copy confidential information to my heart’s content, as long as I only use it within the bounds of my licence to use it. In other words, I can do what I like as long as I don’t disclose the content of that information to anyone else. Here the forbidden action is “telling you the plot”: I could do that either by giving you a full copy of the material, or telling you the plot without copying anything at all. Breach of confidence thus creates heightened compliance issues, implying as it does that the confidential information is not public, presenting risks of market abuse and insider dealing.
  • It is the substantive content and not the particular form of the information that is valuable.

Remedies for breach

Big difference here.