Trade Secrets Without Property? A Review of van Caenegem & Desaunettes-Barbero’s Trade Secrets and Intellectual Property (2nd ed., 2025)

There are moments in the academic calendar when reading becomes something other than triage. The end of year 2025—when the inbox slows, deadlines loosen, and the professional reflex to read “for immediate use” temporarily weakens—restored the possibility of reading for structure rather than urgency. It was in that spirit that I read William van Caenegem and Luc Desaunettes-Barbero’s Trade Secrets and Intellectual Property: Policy, Theory and Comparative Analysis(Second Edition, 2025). I am grateful to the authors for kindly sending me a copy of the book, and I can state my conclusion from the outset: this is a very good book. It is careful, rigorous, and intellectually honest.

The book treats trade secrets not as a marginal appendix to intellectual property law, but as a legal regime that raises fundamental questions of legitimacy, restraint, and systemic balance. That choice alone sets it apart from much of the existing literature. Precisely because the book is so strong in its analytical discipline, its title—and the conceptual stance it encapsulates—invites reflection rather than uncritical assent.

A Serious and Coherent Contribution

Published by Kluwer Law International in 2025, this second edition reflects the maturation of trade secrets law following the EU Trade Secrets Directive, while situating that evolution within a genuinely comparative framework. The work is substantial in scope and methodically organised. It moves from theoretical foundations and international standards to detailed analyses of selected legal systems, notably the United States, the UK and the English law tradition, EU law through the Directive, and the French and German transpositions. It then turns to one of the most sensitive areas of application, trade secrets in employment relationships, before closing with a reflection on convergence and conceptual uncertainty.

One of the book’s major strengths lies in its architecture. Each chapter contributes to a coherent inquiry into why trade secrets deserve protection and, more importantly, how far that protection should extend. The authors do not seek to expand trade secret protection by default. On the contrary, they consistently emphasise calibration, limits, and restraint. This makes the book not only informative, but normatively responsible.

Trade Secrets as a Question of Legitimacy, Not Entitlement

Throughout the book, trade secrets are presented as a legal construct whose legitimacy depends on context and proportionality rather than on abstract entitlement. The authors repeatedly stress that the principal dangers of trade secret law lie less in under-protection than in excess. Secrecy claims may be instrumentalised to restrict competition, limit employee mobility, or recreate exclusivity where the intellectual property system has deliberately refused it.

This concern is particularly evident in the discussion of enforcement. The analysis of the EU Trade Secrets Directive’s insistence on proportionality at the remedy stage is convincing and carefully articulated. Courts are required to consider not only the value of the trade secret and the conduct of the alleged infringer, but also third-party interests, fundamental rights, and the public interest. The book succeeds in demonstrating that proportionality is not a decorative principle but a structural safeguard against over-enforcement and systemic distortion.

Employees, Mobility, and the Real Battleground of Trade Secrets Law

One of the most valuable sections of the book is its sustained attention to trade secrets in employment relationships. Rather than treating labour issues as a peripheral concern, the authors correctly identify post-employment disputes as the primary site where trade secrets law reveals its true stakes. It is in the post-contractual period that secrecy protection most directly confronts employee mobility, professional freedom, and the circulation of skills and experience.

The dedicated chapter on trade secrets and employees avoids caricature. The issue is not framed as a simple opposition between secrecy and mobility, but as a complex interaction between contractual restraints, confidential information, and judicial control. The book situates these issues within a broader regulatory context, noting recent movements to restrict non-compete clauses and the risk that trade secrets law might be used to circumvent such reforms. This comparative and contextual approach significantly strengthens the analysis.

Property Without a "Bad Name"?

It is against this background that the book’s title raises a deeper conceptual question. Trade Secrets and Intellectual Property suggests proximity, but also distance. Throughout the work, the authors deliberately resist qualifying trade secrets as a form of property. This refusal is thoughtful, argued, and clearly intentional. It reflects a concern to avoid the conceptual and political baggage associated with intellectual property, particularly in a field marked by anxieties about over-enclosure, journalistic freedom, whistleblowing, and the free circulation of information.

The reasons advanced are intelligible and, in many respects, persuasive. Trade secrets do not fit neatly within classical intellectual property categories. Their protection arises without registration, often outside contract, and their boundaries are inherently fragile. The authors are right to warn against importing proprietary rhetoric too quickly or too uncritically.

And yet, as the analysis unfolds, a quiet tension emerges. The EU Trade Secrets Directive itself avoids the language of ownership, referring instead to the “holder” of a trade secret. This terminological choice is telling. It suggests control rather than title, possession rather than ownership. But in practice, the position of the holder often looks remarkably close to that of a proprietor. Trade secrets may be used, commercially exploited, licensed, excluded from others, and ultimately disclosed or abandoned at will. They are valuable precisely because they are useful and scarce.

The book does not deny this functional reality, but it chooses not to conceptualise it as property. That reluctance appears less rooted in the nature of secrecy itself than in a broader unease with intellectual property as a contested and politically sensitive category. The refusal of property may thus be understood not as an ontological claim that trade secrets cannot be property, but as a prudential stance designed to keep the regime normatively modest and institutionally defensible.

This raises a legitimate question, posed here not as a challenge but as a test of coherence. If all the classical prerogatives of property are effectively exercised, what exactly is gained by refusing the label? And conversely, what risks would arise from embracing it more openly?

A Productive Ambiguity Rather Than a Flaw

I would only add a small note of hesitation on the language of property. Discussions surrounding trade secrets or the appropriation of information tend, almost reflexively, to be framed in terms of intellectual property rights. Yet this reflex obscures a more basic distinction: the fact that an asset is immaterial does not make it intellectual. An immaterial asset may perfectly well be the object of property without qualifying as intellectual property in the strict sense. Much of the conceptual difficulty stems from a persistent confusion between immateriality and intellectuality, whereas property itself is a broader and more restrained category than intellectual property law.

This may appear, at first glance, as an abstract or overly academic debate1. Yet it carries concrete practical consequences. Whether trade secrets are conceptualised as property or merely as protected interests affects, for instance, the scope of remedies, the structure of injunctions, and the balance struck with competing freedoms such as employee mobility or freedom of expression.

Against this background, the choice made at EU level to avoid the language of ownership in the Trade Secrets Directive is significant. That choice was shaped by political sensitivities, including concerns—voiced notably by journalists—that a proprietary framing of trade secrets might be used to chill investigative reporting or public-interest disclosures.

To the authors’ credit, the book does not attempt to resolve this tension artificially. Instead, it leaves the question open, allowing functional analysis to prevail over conceptual closure. Trade secrets are treated as a regime whose justification lies not in its formal classification, but in its effects and its limits. In that sense, the refusal to speak the language of property may be read less as a doctrinal denial than as a form of normative caution, a reminder that secrecy protection must never become an unquestioned entitlement.

Conclusion: An Excellent Book That Invites Thoughtful Disagreement

Trade Secrets and Intellectual Property is a disciplined, generous, and intellectually serious work. It does not seek to settle debates once and for all. It seeks to frame them responsibly. If its title raises questions, it is because the book itself is strong enough to sustain them.

The tension between property and its refusal is not a weakness of the work, but one of its most stimulating features. It invites the reader to reflect on what trade secrets are becoming, and on what the law should allow them to become.

For scholars, policymakers, and practitioners alike, this is precisely the kind of book one reads during quieter moments of the year: not merely to be informed, but to reflect.

• 1I am particularly grateful to the authors for the reference to the Scandinavian realists, for whom the designation of a legal position as “property” ultimately carries limited significance, priority being given instead to the concrete relations and individual instances of control and allocation. While I am not entirely persuaded that the issue of qualification can be reduced to that functional level alone, the reference is both illuminating and fully consistent with the book’s emphasis on effects rather than labels (See §2.01, pp. 149-150).