FICPI's Views on the Protection of Confidential Information in Communications between an IP Advisor and their Client ("Privilege")
WHY IT IS IMPORTANT:
Intellectual Property Rights (IPRs) exist nationally and, in some cases, regionally. Businesses frequently own corresponding IPRs in multiple countries or regions where they trade in goods and services. It is obvious that these IPRs need to be enforceable in each jurisdiction to protect that trade.
Consequently, parties (clients) often rely on advice from IP advisors in multiple jurisdictions to secure and, when necessary, enforce their valuable IPRs. This advice needs to be clear, complete and candid to ensure IP owners get the best information they need to make good business decisions.
It is generally accepted in most countries that a client’s confidential communications with their IP advisors, as well as any documents and other records related to the provision of such advice (“Confidential Communications”), should be protected from forced disclosure to third parties, for example by a court in enforcement proceedings. However, the rules on this vary from country to country and, as a result, parties risk losing their protection where the courts in one country do not recognise the protection afforded in another country. This can lead to a party’s own potentially critical comments on their IPRs falling into the hands of an opponent.
FICPI’S POINT OF VIEW:
The protection of Confidential Communications is necessary to ensure that the information transferred between the IP advisors and their clients is full and frank, and to ensure a level playing field between IP advisors in different countries.
Further, the protection of Confidential Communications supports both public and private interests in that it increases the likelihood that the advice provided is legally correct and compliant with the law.
The protection of Confidential Communications needs to be certain and based on legal provisions. FICPI believes that protections against disclosure which apply nationally should be fully recognised internationally, i.e. the protection should have a cross-border effect.
If protection is lost in one jurisdiction, protection is lost everywhere.