Abstract: There are mainly two viewpoints in the Chinese academic circle about the theoretical basis of the trade secret system: the theory of legal interests and the theory of intellectual property rights. In the context of technological revolution, the institutional development once again requires the clarification of the theoretical basis of trade secrets. Under the modern concept of property, the protection of trade secrets has the characteristics of "allocation function", "exclusion function" and "typical social obviousness". As such, it transcends the scope of legal interests and become a right in legal sense. However, it cannot be included in the scope of intellectual property rights. Therefore, it's hard to improve the trade secrets system by the systematic approach and necessary to deepen the discussion from the level of attribute to reasons for trade secrets protection. From the perspective of structural functionalism, trade secrets, different from statutory intellectual property rights, should be positioned as a protection mechanism for privately constructed property. They are a type of property similar to physical property based on possession. This understanding can provide a relatively comprehensive interpretation for the existing trade secret system, which is widely accepted by modern legislation and can also meets the modern institutional needs of information property protection. 

 Key Words: trade secret; data; intellectual property; property right; possession 

Author: Zhang Haoran, Ph.D. in Law, an assistant research fellow at CASS Institute of Law, and a research fellow at CASS Center for Intellectual Property Studies.

Source: 9 (2023) Intellectual Property.