Harmonising Trade Secret Protection in AI: Innovation, Opacity and Digital Vulnerability

This study examines how the international harmonisation of intellectual property rules, particularly trade secret protection, reshapes the governance of artificial intelligence (AI) in ways that both enable and threaten justice. We argue that convergent standards on undisclosed information are essential for legal certainty in knowledge-intensive AI investments. Such standards are anchored in TRIPS, reinforced by WIPO guidance and digital trade agreements, and complemented by regional instruments such as the EU Trade Secrets Directive. This emerging framework facilitates cross-border technological cooperation while helping prevent the “regulatory expropriation” of code, models, and data infrastructures. At the same time, when this pro-secrecy architecture is extended to opaque algorithmic systems that mediate access to credit, employment, welfare, health and justice, it can entrench digital vulnerability: information asymmetries between firms, states and citizens; barriers to meaningful transparency and audit; and pathogenic forms of exclusion that disproportionately affect already disadvantaged groups. Building on the concept of digital and structural vulnerability, the paper defends a vulnerability-sensitive approach to harmonisation in which trade secret protection is balanced against human rights, algorithmic accountability and the regulatory space of Global South states. We conclude that only an intellectual property regime guided by an ethics and politics of vulnerability can reconcile economic integration, technological development and reducing digital vulnerability in deeply unequal societies.