NCJ Number
177679
Date Published
1999
Length
6 pages
Annotation
This essay discusses whether Australia's existing legal safeguards against industrial espionage are adequate or whether the greater use of criminal sanctions such as those recently introduced in the United States might be appropriate.
Abstract
Trade secrets are typically misappropriated through employees, with or without deliberate collaboration; through telecommunications interceptions such as wiretapping and the use of directional microphones; and reverse engineering. The Economic Espionage Act, introduced in the United States Congress in 1996, made theft of trade secrets a crime and made economic espionage a separate crime. All jurisdictions in Australia have largely mitigated the definitional problems relating to information by having criminalized unlawful access to, alteration of, or destruction of data. It is also unlawful for a person to intercept or allow another person to intercept a communication passing over a telecommunication system. Unlike the United States, which has State-based statutory protection for trade secrets, Australia's contractual and equitable intervention for the protection of trade secrets is based in the enforcement of relationships of trust and confidence. The economic effect of criminal legislation on the existing incentive structures established by intellectual property laws should be considered before criminalizing industrial espionage. The issue of who should bear the cost of enforcement should also be considered. Criminalization of industrial espionage per se in Australia is unlikely to prove a significantly greater deterrent than civil law and would require an expensive effort. A sensible compromise would be to combine an educational program with a Federal codification and simplification of trade-secrets protection. 13 references