LATEST NEWS: In the Artificial Intelligence Economy, True Luxury is the Secret
There is a new silent obsession in the business world that no longer lies solely in innovation, artificial intelligence or the speed with which products are launched onto the market. The concern has changed: control. Control over information, knowledge, data, internal processes and, above all, over what really creates competitive advantage. Curiously, the more sophisticated technology becomes, the more evident it becomes that the most valuable assets are those that never reach the public arena. In many organisations, this topic arises almost inevitably today. And it rarely begins with a purely technical discussion. It arises from a diffuse but growing concern: the realisation that technological tools are being fed with strategic information on a daily basis without there being any real awareness of the economic and legal value of what is fed into them.
For decades, we have become accustomed to associating intellectual property with relatively classic and easily identifiable rights. A trade mark, a patent, software, a design or a work protected by copyright were clear examples of what needed to be protected. The logic was simple: you created something, ensured its legal protection and, in return, obtained an exclusive right. In many cases, this protection depended precisely on the public dissemination of information. The patent system remains the most obvious example of this logic. The inventor reveals the invention to the world and, in return, benefits from a temporary monopoly on exploitation.
The digital economy has profoundly changed this paradigm. Today, economic value no longer lies only in what is shown to the market, but in what remains inaccessible. An internal algorithm, an analysis methodology, a pricing model, a segmentation system, a database, a set of prompts or an operational logic can represent assets of far greater value than the final product itself. In many sectors, competitive advantage no longer lies exclusively in the visible result, but in the internal mechanisms that allow companies to decide faster, anticipate trends, process information more efficiently or achieve results that are difficult to replicate.
In this context, trade secrets have acquired a new legal and economic centrality. For a long time, they were seen as the less visible side of intellectual property, less media-friendly than patents and less intuitive than copyright. But perhaps it is this discretion that makes them so important. Unlike patents, which protect through disclosure, trade secrets protect through the reservation of information. Their value depends on the fact that this information is not public. The classic example remains the Coca-Cola formula. It has never been patented. It has never been revealed. It remains protected because it remains secret.
This reasoning has become even more relevant in the age of artificial intelligence. Today, some of the world's most valuable institutions depend on assets whose protection through classic intellectual property mechanisms is proving insufficient. Instead, the real assets lie in data sets, training models, internal methodologies, algorithmic structures, recommendation systems or combinations of strategic information that would immediately lose value if they were exposed.
In the European Union, this matter has been harmonised through Directive (EU) 2016/943 on the protection of confidential know-how and business information against their unlawful acquisition, use and disclosure. In Portugal, the directive was transposed by Decree-Law 110/2018 of 10 December 2018, which approved the new Industrial Property Code, in force since 2019, making the legal regime for trade secrets autonomous for the first time in the Portuguese legal system.
Despite this, many organisations still don't treat these assets with the degree of care that today's reality demands. Sensitive information continues to circulate without effective control, namely through excessively broad internal access, the indiscriminate use of technological platforms or the absence of clear confidentiality policies. The massive adoption of artificial intelligence tools has further exacerbated this phenomenon. Today, all it takes is for an employee to upload strategic documents onto a generative artificial intelligence platform for critical information to leave the company's sphere of control, sometimes irreversibly. The same happens with external consultants, technology suppliers or development teams
who process sensitive information in environments whose traceability is not always clear.
In most cases, these situations are not the result of illicit intentions. Above all, they result from the constant search for efficiency. Artificial intelligence has become an everyday working tool and, with it, the circulation of strategic information in technological environments that were not designed to ensure total confidentiality has also become normalised.
However, when information is no longer under control, it may no longer be possible to reconstruct the exclusivity that gave it economic value. Legally, trade secrets are not protected just because certain information is considered relevant or confidential. Protection depends on demonstrating that this information has economic value because it is not public. It also depends on the adoption of concrete measures to preserve its confidentiality. This implies, in particular, appropriate contracts, limiting access, internal classification of information, security mechanisms and specific rules on the use of artificial intelligence tools.
The conclusion of generic confidentiality agreements, the absence of effective internal policies or the existence of indiscriminate access are unlikely to be enough to ensure protection under the legal regime applicable to trade secrets. Unlike other intellectual property rights, trade secrets depend on continuous behaviour. Their protection does not result solely from the existence of the law. It results from the ability to demonstrate that the information in question was treated as a real strategic asset from the outset.
For many years, the aim has been to demonstrate innovation, growth, technology and differentiation. Today it is becoming clear that a substantial part of economic value lies in what remains inaccessible to others. In the age of artificial intelligence, true luxury may no longer lie in what you can show the market, but in what you can protect from the market. Because, in the end, what creates competitive advantage is rarely just the visible product. It's often the knowledge behind it that third parties can't access.
