What Legal Framework for Promoting the Cross-Border Flow of Intellectual Assets (Trade Secrets and Music)? A View from Europe Towards Asia (China and Japan)

Abstract

In the information age, intellectual assets (such as trade secrets and music) are flowing across borders and between continents. However, legal hurdles may still negatively affect and prevent the smooth flow of these intellectual assets, as shown in the article. Even though the article analyses the issue from a European perspective with a view towards Asia (China and Japan), the legal issues which it identifies are typical by nature and can thus be viewed as local examples of a truly global and international issue. The analysis concludes that, beyond the potential differences in the substantive level of protection of trade secrets and of music (as resulting from the substantive intellectual property laws) which may exist between national or regional intellectual property regimes, hurdles to the cross-border flow of intellectual assets may also — and perhaps more importantly — result from other legal fields (such as private international law, technology import and export regulations and the regulation regarding the collective management of copyrights). As a result, any policymaker wishing to promote the crossborder flow of intellectual assets should imperatively take into account these aspects when thinking about the design of a balanced and fair policy framework.

Keywords: China, Choice of law, Intellectual property, International trade, Japan, Musical works, Switzerland, Technology transfer, Trade secrets