What is Confidential Information? - OneNDA Provision: Difference between revisions

*'''Deriving new information from [[intellectual property]]''': So: taking copyrighted information and fiddling around with it potentially takes it outside the realm of [[copyright]]. The point about copyright is that it attaches to a ''specific articulation of a creative idea''. If you take that idea and change how it is expressed — if you derive new content out of it — then, potentially, ''you'' own that new copyright, not the person whose copyrighted work you modified. You can control a recipient's ability to create/derive new [[intellectual property]] by {{t|contract}}, and it is fair to do so.

*'''Deriving new information from [[data]] ''you have been given''''': With ''non''-copyrightable data, you don’t own in the first place: by the lights of copyright law, you did not use your creative juices to produce it<ref>If you had done, you would own copyright in it.</ref>, so a person to whom you supply that information who then uses ''hers'' to derive some new information out of is not infringing your [[proprietary]] right. You don’t ''have'' a [[proprietary]] right.  But you might still feel entitled to stop that derivative act: the publisher of a proprietary [[index]] who gives you a feed of the raw index data will not want you adding one more paltry variable, dividing by 0.99999, and calling it your own brand-new index. Here, too there are [[trademark]] and [[passing off]] issues: if you do that, without saying something incriminating like, “hey guys it’s just like the Eurostoxx! it's the Eurostoxxx! with an extra x!” then perhaps you could say you weren’t doing anything to which the publisher of Eurostoxx could object. On the other hand, the publisher of Eurostoxx ''can'' remind you that the only way you can get that data in the first place is from it, and if you want it, you have to agree not to derive it.

“[[Written or oral]]” is a favourite [[incluso]] for a mediocre lawyer who can’t think of any other way of “[[adding value]]”. For purely practical reasons, resist the urge to include orally transmitted information. Especially in a service-provider - client relationship, and especially if you are the service provider receiving the information — it gives your client a free, and hard to disprove option to claim anything at all that they want to keep secret is something "I told you, remember?". It may also interfere with service provider's ability to claim it had prior possession of the information (and therefore the information is out of scope of the confidentiality obligation altogether).