Sermaye Piyasası Hukuku açısından ticari sırlar
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Date
2007
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Publisher
Sosyal Bilimler Enstitüsü
Abstract
A trade secret may consist of any formula, pattern, device or compilation ofinformation which is used in one?s business and which gives him an opportunity toobtain an advantage over competitors who neither know nor use it.Trade secrets contain three basic elements. These elements are being eligibleto protection, secrecy and value. If a piece of information has these 3 elements, itmay be considered as trade secret and may make use of the trade secret protection.Inventions, formulas, compounds, processes, manufacturing methods,customer lists, marketing, advertising and strategic business plans, personnel andemployement records, data, techniques and drawings can be given as examples totrade secrets.?Secrecy? is the most important element in determining whether informationis to be considered a trade secret or not. In order for information to be consideredsecret, it is necessary that the information should not be widely known within thecertain field of busines it is used, and that security measures should be taken by theowner of the secret.The other element of trade secrets is ?value?. The value requirements fortrade secret protection mean that the information must have sufficient value in theoperation of the business to provide the owner or user with an actual and potentialeconomic or competitive advantage over others who dont have the information.The types of trade secrets are ?products?, ?processes, machines devices andformulas?, ?customer lists?, ?ideas? and ?business informations?.We should look at the rules in the Capital Market Act related to the princibleof public disclosure and insider tradings in order to evaluate trade secrets from thepoint of view of the Capital Market Law. Because, the informations which have to bedisclosed under the princibles of public disclosure, constitutes trade secrets and alsothe informations which are the subject of insider tradings constitutes trade secrets.The princible of public disclosure provides the investors with the right andexact information about the company which is subject to investment.. In accordancewith this princible, the joint stock corporations must disclose the required trade secretto the public. This, restricts the extend of the trade secrets of the joint stockcorporations and prevent them from taking advantage of having trade secrets andmaking use of the rights under trade secret protections.According to the article 47 A/1 of Capital Market Act, insider trading is?seeking to benefit or to eliminate a potential loss resulting in the rupture of equalopportunity among paritcipants operating in th capital markets by making use ofundisclosed information that may affect the values of the instruments of the capitalmarket.?In order for the trade secret to be a subject matter of insider training and to beprotected under the Capital Market Act, the trade secret must be effective on theprices of securities, be obtained by insiders and be used for the purpose of makingbenefit. The ones who commit insider trading by using trade secret which carriesthese qualities are penalized by imprisonment and fine.In evaluating trade secrets from the point of view of the Banks, we shouldexamine the rules related to the Banks Act, since bank secrets, regulated under thearticle 73 of Banks Act, have a strong relationship with trade secrets.The bank secret is generally defined as a secret which a bank or a bankershas obtained in the course of his professional activities. Bank secrets are divided intotwo as client?s secrets and bank?s secrets.In order for a trade secret to be protected under the Banks Act, it has to be abank secret and be disclosed by the bank workers, without the consent of the client orthe bank, to people who don?t have the legal right.Disclosing a trade secret under these circumstances is prohibited and boundedby sanctions under the Article 159 of the Banks Act.The Banks which are dependent on the Capital Market Act for havingparticipated in the activities regulated in V. Part of Capital Market Act and havingissued their stocks through public offering, have to disclose certain information topublic, suh as financial situation and balanca sheet in accordance with ?disclosureprincipal? . The secrets which are banned from being disclosed as to Banks Act, donot comprise the secrets which banks are obliged to disclose as to Capital MarketAct. In this frame, the bank secrets of the banks offering securities to the public,should be evaluated in accordance with the disclosure princible and be interpretedrestricted.
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Keywords
Sermaye Piyasası Kanunu, Capital Market Law, Sermaye piyasası, Capital market, Ticaret hukuku, Commercial law, Ticari sır, Trade secret