Game studios can use a non-disclosure agreement (NDA) to set contractual rules for information shared with employees, contractors, or collaborators. Trade-secret protection is different: it may apply to information that is secret, commercially valuable because it is secret, and protected with reasonable secrecy measures. An NDA can help support those measures, but signing one does not automatically make every covered game asset a trade secret.
Is an NDA the same as a trade secret?
No. An NDA is a contract; a trade secret is a legal status that may apply to qualifying information. A contract can impose confidentiality and use limits on information even when that information does not meet the legal test for trade-secret protection.
| Question | NDA | Trade secret |
|---|---|---|
| What creates it? | An agreement between parties that sets duties for handling information. | Information that meets applicable legal criteria for secrecy, commercial value from secrecy, and reasonable protection measures. |
| What does it cover? | Information defined in the contract, subject to its terms and exceptions. | Only information that qualifies under the applicable law; a label alone is not enough. |
| What does it require? | Clear boundaries on disclosure and use, including the permitted purpose and exceptions. | Reasonable steps to preserve secrecy, alongside the information’s secrecy and commercial value. |
| Does it prevent all use or disclosure? | No. Contract terms and exceptions matter; common exceptions include information already public through no fault of the recipient and independently developed information. | No. Trade-secret rules generally do not bar independent development, and reverse engineering is generally outside trade-secret protection, subject to jurisdiction and contract. |
WIPO describes the trade-secret criteria and explains that rules differ by country in its Trade Secrets overview. Its Guide to Trade Secrets and Innovation, Part IV discusses confidentiality agreements and their drafting. The applicable law and the agreement’s wording determine the position in a particular situation.
What unreleased game information might be protected?
Potentially sensitive material includes unreleased mechanics, algorithms, game designs, source code, development tools, design documents, prototypes, and other proprietary assets. WIPO’s Intellectual Property and Video Games: A Briefing Paper specifically discusses game mechanics, algorithms, design, confidentiality agreements, and access controls for repositories and design documents.
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Whether a particular asset qualifies is a separate question. A public trailer, released build, or already disclosed fact may no longer be secret in the relevant sense. Calling something “confidential” in an NDA or internal policy does not by itself establish that it has commercial value because of secrecy or that reasonable measures were taken to protect it. WIPO’s general overview sets out those criteria.
How studios can build protection in layers
There is no single process every studio follows. WIPO’s recommendations describe practical measures that can work together; they are not evidence that any particular studio uses them.
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- Identify and classify valuable information. Decide which assets have competitive value because they are not public, who needs them, and what harm disclosure could cause. WIPO’s Guide to Trade Secrets and Innovation, Part IV recommends identifying valuable information, risks, and proportionate ways to reduce those risks.
- Set contractual boundaries early. Use employment or contractor confidentiality clauses, or separate NDAs where appropriate. Define what is covered, the authorized purpose, who may access or use it, permitted disclosures, and exceptions. WIPO recommends putting agreements in place at the beginning of a working relationship in its Part IV guide.
- Restrict access to people who need it. Limit access to builds, code repositories, design documents, and partner materials according to role and task; review access when responsibilities change. WIPO discusses access controls for game-development materials in its video-game briefing paper and practical measures in How to Protect Trade Secrets?.
- Secure digital assets and communications. WIPO’s Guide to Trade Secrets and Innovation, Part VII identifies measures such as two-factor authentication, encryption, and breach detection as safeguards against digital trade-secret risks.
- Train staff and reinforce good habits. Explain what is confidential, how to handle it, and where to report a suspected disclosure. WIPO recommends employee education and a workplace culture that treats confidentiality as a priority in How to Protect Trade Secrets? and its Part IV guide.
- Keep records and respond promptly to suspected leaks. Records of what was protected, who had access, and which controls were used can help establish the steps taken. WIPO notes that proving ownership and misappropriation can be difficult and advises prompt action to limit disclosure in its Trade Secrets FAQ.
What trade-secret protection does not do
- It does not grant a general monopoly on an idea. Someone who independently develops the same information is generally not stopped by trade-secret protection. WIPO discusses this limit in its Guide to Trade Secrets and Innovation, Part III.
- It generally does not prevent reverse engineering. WIPO describes reverse engineering as generally outside trade-secret protection, though national law and contract terms can affect the analysis. See Part III of the WIPO guide.
- It does not give an employer ownership of an employee’s ordinary skills and experience. Restrictions on post-employment conduct, including non-competes, vary by jurisdiction and may be limited by national law. The same WIPO Part III guide addresses these legal limits.
- It is not an automatic registration or guarantee. There is no worldwide trade-secret registration that certifies an asset. A holder may need to show both that the information qualified for protection and that misappropriation occurred; evidence can be difficult to obtain, and legal proceedings can create further disclosure concerns. WIPO explains these issues in its Trade Secrets FAQ.
Why the governing law matters
Trade-secret definitions, remedies, contract rules, reverse-engineering exceptions, and limits on employment restrictions vary by jurisdiction. WIPO’s FAQ and Part III guide describe those differences. A studio’s position depends on the governing law, the information at issue, the steps actually taken to protect it, and the facts of any alleged disclosure or misuse. This is general information, not legal advice; studio-specific agreements and controls call for advice from an intellectual-property lawyer qualified in the relevant jurisdiction.
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