Part 7 of AudreyGrey’s Intellectual Property Series
Introduction
Why does everyone want you to sign an NDA? Simple. Because you don’t know the Winklevosses. Wait what has that got to do with anything?’ you ask… Well, back in 2002, when Mark Zuckerberg was still in Harvard, and yet to build Facebook, the Winklevoss twins asked him to join their project for a social media platform much like Facebook called ConnectU, only targeted at dating. Zuckerberg joined the project, and then stalled its completion while he built its rival, Facebook, and took it to market. By the time the twins discovered what had gone on, it was too late. It took them several years to battle it out in court. After several years, they were awarded $65 million in damages ($20 million in cash plus 1.25 million Facebook shares) while Mark Zuckerberg made billions from tweaking their program and selling it as a different product. Now you know the Wilklenosses. And if you are like most people, you definitely do not want to be them.
Thankfully, this article gives you the tools to avoid that fate. In Part 6 of this series, we discussed how to monetise and use trade secrets. In this article, we will take a closer look at how to protect them: Specifically, how to use confidentiality, non-solicitation, and exclusivity clauses, and cybersecurity protocols to ensure that whether you intend to keep your secrets to yourself or sell them for profits, they stay secret and maintain their value to. The good part is that these tools do not protect only IP that is intended as trade secrets only. They protect patents at the pre-filing stage, copyright works pre-publication, trademarks-in-development, and confidential know-how generally.
Confidentiality Clauses & NDAs
Confidentiality is the state of having the dissemination of certain information restricted. Simply put, it is a legal obligation to safeguard information, and to use information acquired appropriately. In the early stages of development for nearly every IP, this obligation becomes necessary once more than one individual needs to work on it before it gets to the market.
Some types of information are considered so fundamental to a business’s success that the law may imply a duty of confidentiality even without an express obligation of confidentiality. These include client data, supplier lists, financial records, manufacturing processes, research data, and source codes for computer programs. It could also include information that is disclosed in circumstances where it is obvious that it is intended to be confidential .
However, in order to avoid any ambiguity, it important to expressly define which classes of information are confidential. This is especially crucial if the peculiar circumstances of your business require that information that ordinarily could have been public needs to stay private. It is also important to spell out who the authorized recipient is, what the scope of acceptable use is, who they can or cannot share the information with, what permissions those third parties can have, and what happens to the confidential information after the contract ends. You can even go so far as to prescribe the consequences for deliberate and accidental breaches of these confidentiality obligations by the recipient or the third parties they share it with. When these protections are part of a broader agreement covering the entire transaction, we call them confidentiality clauses. When the entire agreement is made just to spell out the confidentiality obligations, you have an NDA – A Non-Disclosure Agreement.
Whether you choose an NDA or a confidentiality clause depends on how detailed the confidentiality obligations need to be.
Who should sign NDAs or have contracts with confidentiality clauses?
Every employee in your company who is likely to access confidential information of any sort; Every supplier, vendor, or distributor who would have access to confidential information; and Every potential investor, consultant, or advisor that you bring on board. For creatives, even the producers, sound and other technicians, vocalists, instrumentalists, scriptwriters, actors… everyone that comes into contact with your manuscripts, musical scores, or blueprints until you bring the final product to the market, should sign a confidentiality agreement. You would discover in our piece on Copyright (Part 8) that one song, play, or movie, can have multiple IP rights over each component of the song or movie. So, a person stealing just one component such as your script, lyrics, music sheet, could have dire consequences for the entire production.
Not everything is confidential
Firstly, it is important to note that not everything is confidential. Generally, information that is already publicly available or becomes public without fault on the recipient’s end cannot be covered by confidentiality obligations . Other types of information also may be excluded on case-by-case basis. This is why it is important to have a professional draw up of your clauses/ contract so that they are neither too narrow (allowing people to get away with detrimental disclosures) or too broad (that courts hesitate to enforce them).
Non-Solicitation Clauses
A non-solicitation clause is a contract provision that prevents you from reaching out to a former employer or business partner’s clients, customers, employees, or service providers after you leave the company or after the business relationship comes to an end.
In an employment contract, a non-solicitation clause prevents employees from targeting the employer’s clients, vendors, suppliers, and other business associates during the term of the employment, and for a limited period after the contract ends. The aim is to reduce the incentive for employees set up rival businesses using their employer’s trade secrets . This is because it is very easy for an employee to persuade these people to end their relationship with the employer and deal with the employee directly if they are satisfied with the employee’s service delivery. In a business partner’s contract, the clause protects the company from poaching of its employees, partners and service providers, and the attendant risk of disclosure of sensitive trade secrets, and other sensitive IP.
Exclusivity or Non-Compete Clauses
Exclusivity clauses or agreements are the equivalent of a monogamous marriage in business. An exclusivity clause simply says, “When you offer this service/ product/ IP to me, you cannot offer it to any other person, [unless I agree to it].” For in an employment relationship, it prevents the employee from working for any other person or organisation, including themselves.
If you are a purchaser of a trade secret or other IP right, you should definitely insist on exclusivity clauses so that the original developer does not simply turn around and offer the same access to another party, significantly diluting the commercial value of your purchase. Even when the trade secret is being licensed within a franchise arrangement, some level of exclusivity can be built in. Usually, franchise exclusivity clauses protect the franchisee’s interest within a specific geographical space, rather than placing a wholesale bar on further disclosures or sales.
There is a catch. Exclusivity clauses are generally illegal . They are considered contrary to public policy, and therefore, unenforceable, because they interfere with the constitutionally protected right to work . However, there are exceptions to the rule. Understanding these exceptions is the key to having airtight IP protections, instead of paper tigers
An exclusivity clause will be enforceable if it is reasonable in its scope. What is reasonable is explained in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1916] 1 AC 688:
“It is a sufficient justification, and indeed it is the only justification, if the restriction is reasonable—reasonable, that is, in reference to the interests of the parties concerned and reasonable in reference to the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public”.
Though the Nordenfelt case says the exception is just one – reasonableness – what the courts will deem reasonable differs from contract to contract. Stricter controls are permitted when two businesses are dealing at arm’s length. When employees are concerned, the law leans towards protecting the employees’ right to work. Either way, it is often a matter of discretion. And it is often a good idea to procure professional assistance in drafting these contractual provisions.
Access Controls and Cybersecurity Protocols
Access controls refer to all the restrictions an IP holder puts in place to limit access to their IP. They can be physical restrictions. These can be enforced with items as basic as a lock and key, or as sophisticated as biometric scans and vaults.
Cybersecurity Protocols
Access controls can also be system-based. This is where the discussion on cybersecurity, and to some extent, AI, comes in. Using a password on your computer, having a good firewall, and installing an antivirus are good first steps. However, the more valuable the IP in question is, the more sophisticated the cybersecurity protocols need to be.
These protocols could include end-to-end encryption for sensitive communications, audit logs, and device management so that stolen or lost devices can be wiped remotely, and tiered access that defines who can access what on the company’s servers. Incident response is another critical aspect of cybersecurity that most overlook.
Incident response is the equivalent of police action after a crime has been committed. If your systems are not able to flag anomalies quickly, and your team doesn’t investigate and fix bugs, glitches and system downtimes quickly, not only are you at risk of losing critical data, you may be completely oblivious of it.
Responsible AI use and Risks
How you use AI tools in the development process introduces unique vulnerabilities. When teams feed proprietary source code, unreleased marketing copy, or unpatented product designs into public or third party Large Language Models, that data can be ingested into training sets or exposed via API vulnerabilities, effectively destroying trade secret status by placing proprietary information into the public domain.
AI has come to stay, so there is no point banning it. Instead, businesses should do these 4 things:
- Enforce Enterprise-Grade Subscriptions Only.
Ban the use of free, consumer-tier AI accounts for company work. Insist that employees only use enterprise or developer tiers (such as ChatGPT Enterprise, Claude Team/Enterprise, or secure corporate API integrations) where strict zero-retention data policies apply. This ensures that your inputs are contractually guaranteed not to be used for model training.
- Establish an AI Acceptable Use Policy
Draft clear internal rules defining what can and cannot be fed to an LLM. For example: raw source code, unpatented R&D schematics, unreleased financial reports, and client data are strictly barred from public AI tools. Publicly available libraries, generic syntax debugging, and high-level structural brainstorming can be permitted.
- Deploy Local/ On-Premise Open Source Models
For ultra-sensitive IP (such as proprietary source code or core trade secrets), your engineering team should run open-source models hosted locally on company controlled servers. You can use tools like Ollama or LM Studio with models like Llama. This ensures your data never leaves your internal network.
- Update your NDA and Vendor Contracts
Explicitly include AI tools and third party data processors in your confidentiality agreements. Ensure any software vendors or contractors you hire are contractually barred from feeding your project data or creative works into external AI training pipelines.
Next Steps: Practical Checklist
Having read this article up to this point, you are probably wondering, where do I start? Here are 5 simple steps you can take within this quarter to get started:
Conclusion
Protection isn’t just defensive. It is what makes licensing/franchising deals valuable in the first place. And secrecy during R&D is what ensures that the research budget remains an investment and not a drain on the company’s resources that needs to be plugged. So as a business or individual developing your IP, you must consider how far the exchange of information can go, and which combination of these tools will shield your business from future collapse arising from a single act of disclosure.
[1] ConnectU Inc v Facebook Inc, Civil Action No. 1:07-CV-10593-DPW and ConnectU v Facebook, Case No. 1:04-CV-11923
[2] Black’s Law Dictionary (8 Ed)th
[3] Article 39 of the WTO TRIPS Agreement; Sections 5(1) and (2) of the Protection Against Unfair Competition Act, 2000 (Act 589); Coco v. A. N. Clark (Engineers) Ltd [1969] RPC 41 (establishing the common law criteria for confidential information); Faccenda Chicken Ltd v. Fowler [1986] 1 All ER 617 (distinguishing trade secrets and confidential information that carry implied duties of confidence). Seager v. Copydex Ltd [1967] 2 All ER 415 (holding that a duty of confidence arises in equity whenever information is imparted for a limited purpose, regardless of whether a formal NDA was executed).
[4] Article 39(2)(a) of the WTO TRIPS Agreement
[5] Christina Dowouna-Hammond, The Law of Contract in Ghana. 2011
[6]Audrey Nana Oye Addy, “Enforceability of Clause in Restraint of Trade Under Ghanaian Law” (Mondaq, 16 October 2023) https://www.mondaq.com/employee-rights-labour
relations/1377544/enforceability-of-clauses-in-restraint-of-trade-under-ghanaian-law accessed on 9th September 2026.
[7] This applies to non-solicitation clauses as well, because non-competes (exclusivity clauses) and non-solicitation clauses are contracts in restraint of trade that interfere with the right to work.
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Authors: Audrey Naa Dei Kotey, Clara Mettle-Nunoo & Queensca Pamela Asare