This chapter provides a set of guidelines to assist information assurance and security researchers in creating, negotiating, and reviewing non-disclosure agreements, in consultation with appropriate legal counsel. It also reviews the use of non-disclosure agreements in academic research environments from multiple points of view. Active academic researchers, industry practitioners, and corporate legal counsel all provided input into the compiled guidelines. An annotated bibliography and links are provided for further review.
A Non-Disclosure Agreement is an “agreement restricting the use of information by prohibiting a contracting party from divulging data” (Beyer, 2001). NDAs arise out of a relationship whereby one or both parties to the agreement seek to contractually articulate the respective rights and responsibilities of the parties with regard to some kind of intellectual property. Generally speaking, Intellectual Property is any property that can be protected by law including copyrights, ideas, inventions, and other forms of the intellect that has independent commercial value and is not generally known.
For the researcher, it is very important to determine what rights apply to the work to be produced that is, the researcher’s results, papers, and products. The researcher should ask the question as to whether the property is primarily functional or aesthetic. Functional elements are protected by utility patents and trade secrets. Nonfunctional or aesthetic elements are protected by trademarks, copyrights and patents. The researcher may ask the question: “Does this creation accomplish a task or goal or is it done primarily to appeal to the senses or provide information or entertainment?” (Milgrim, 2006a, Chapter 9.04).
Thus courts apply property rules when it comes to intellectual product. Because intellectual product is considered property, the issue for the researcher is to identify who is the “owner” of the property. This is critical because the owner of intellectual property has the right to use it and disclose it to others or restrict its use and disclosure as the case may be (Milgrim, 2006b, Chapter 2.01).
Consequently, the identification of the type of intellectual property law applicable to the researcher’s activity is very important. Intellectual property law involves several distinct legal disciplines which at times overlap (Milgrim, 2006a, Chapter 9.02). There are four types of Intellectual Property laws which are generally applicable to the activities of researchers: patent law; copyright law; trademark law; and trade secret law.
Key Terms in this Chapter
Confidentiality: Restrictions on the dissemination of information (Garner, 2004, p. 318).
Intellectual Property: “A category of intangible rights protecting commercially valuable products of the human intellect,” including but not limited to trademark, copyright, patent, and trade secret rights (Garner, 2004, p. 824).
Trade Secret: “A formula, process, device, or other business information that is kept confidential to maintain an advantage over competitors” (Garner, 2004, p. 1533).
Copyright: “A property right in an original work of authorship … giving the holder exclusive right to reproduce, adapt, distribute, perform, and display the work” (Garner, 2004, p. 361).
Trademark: “A word, phrase, logo, or other graphic symbol used … to distinguish a product … from those of others” (Garner, 2004, p. 1530).
Patent: “The right to exclude others from making, using, marketing, selling … or importing an invention for a specified period” (Garner, 2004, p. 1156).
Non-Disclosure Agreement: A contract promising “not to disclose any information shared by or discovered from a trade secret holder” (Garner, 2004, p. 1079).