ABSTRACT
It has been widely recognized that trade secrecy has been an obstacle to transparency in automated decision-making (ADM). In several instances involving automated decisions impacting individuals, the disclosure of decision-making processes has been restricted to safeguard proprietary information. This limitation to transparency has prompted scholars to question the appropriateness of trade secrecy during the age of algorithms including calling for the complete removal of trade secret protection for algorithms in some cases. Whilst some proposed an unconditional disclosure of data used in automated decisions as well as the source code, others argued for imposing patent systems for certain software programmes. In this article, the author recognises the potential conflict between transparency in ADM and the protection of proprietary information; but argues that the existing trade secret and data protection laws could be applied to balance these interests. Furthermore, the author contends that neither abolishing trade secrecy nor mandating patent-based protection for algorithms is necessary or justifiable. Lastly, the author asserts that due to practical challenges associated with patenting AI systems, businesses are likely to prefer trade secret protection over patents for their inventions.
Gikay, Asress Adimi, Trade Secrecy in Automated Decisions – Against the Myth of Irreconcilability and the Imposition of Patent (June 11, 2024).
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