NDA in copywriting – what is it and when is it signed?

What is Non-Disclosure Agreement (NDA)?

The information provided may not be disclosed to third parties without the consent of the ordering entity. Where the NDA is part of another agreement, it is known as a confidentiality clause. A document of this type is reserved as a penalty for breaking the conditions, i.e. leakage of information provided by the entrepreneur.

NDA with a copywriter

In copywriting, a unilateral confidentiality agreement is used. Accordingly, only one party (the copywriter) is obligated. NDA is most often signed when working on a new brand, product or technology that is not yet available on the market.

Currently, a confidentiality agreement is a standard in marketing agencies, as well as in direct cooperation between the copywriter and the client. The NDA gives the entrepreneur certainty that the submitted materials will not be stolen, copied or made available to competitors.

NDA in copywriting – should you sign it?

A confidentiality agreement is increasingly becoming a standard procedure proposed by the entrepreneur. Therefore, signing the NDA may be necessary to start cooperation. However, financial penalties for breaching the terms of the contract should be proportionate to the remuneration received. In the case of an order for several hundred zlotys, the sanction imposed on the copywriter for non-compliance with the provisions cannot reach tens of thousands.

What should an NDA contain?

The confidentiality agreement is to some extent similar to other civil law documents. Accordingly, it should contain elements such as:

• identification of the entities (parties) of the contract,
• subject of the contract,
• scope of protection,
• date and signatures of both parties.

The most important aspect of the NDA is the subject of the contract, i.e. the contractor’s obligation to maintain confidentiality.

Though there is no all encompassing legislation in Nigeria to protect Confidential Information and Trade Secrets as it can be seen with other intellectual rights like Copyright, Patent, Trademark and Industrial Designs, civil action can still be taken in the event of a breach of confidence in relation to Confidential Information as seen from the case of Coco vs. A Clark (Engineers) Ltd, 1992.

There are, however, conditions to be fulfilled so as to sustain a civil action for breach of confidence. These conditions includes the following:
(a) The information must be confidential;
(b) The information must be disclosed in circumstances, which give rise to an obligation of confidence.
c) There must be an actual or anticipated unauthorized use or disclosure of the information.
(d) The plaintiff must provide proof of having suffering some consequences from the breach of NDA.

Publicly known information will not be treated as confidential. The contract specifies in detail the reserved data and activities prohibited by the principal. The NDA should identify specific confidential information. The copywriter signing the document is then fully aware of his obligations, and the entrepreneur is not afraid of data leakage.

Penalties for non-compliance with the NDA

An integral part of the confidentiality agreement is the financial penalty for breaking the terms. The sanction may be paid by the copywriter in the form of compensation depending on the amount of damage suffered. The second form of liability is a contractual penalty, specifying in detail the amount of the financial penalty. It is an increasingly common practice of entrepreneurs to differentiate sanctions for providing data to competitors from obligations for data leaks to the media and other violations.

NDA – duration

The duration of the NDA should be agreed in advance with the copywriter and included in the contract. Confidentiality applies both during cooperation and after its termination.

However, the NDA does not always apply. Confidentiality after termination of the contract is valid for a minimum of one year. However, it is usually between 2 and 3 years.

Confidentiality of negotiations according to Nigerian constitution

As mentioned earlier. there are no all-encompassing legislation in Nigeria (unlike in other developed nations) to protect Confidential Information and Trade Secrets as it can be seen with other intellectual rights like Copyright, Patent, Trademark and Industrial Designs .

This forced many entrepreneurs into taking practical steps to  protect confidential information and trade secrets.

Practical ways of protecting Confidential Information and Trade Secrets In Nigeria

Having identified that Nigerian SMEs desire the use of confidential information and trade secrets, it is important, therefore, to make sure that these enterprises take all necessary measures to effectively protect their trade secrets.94 It is important to consider whether the secret is patentable and, if so, whether it would not be better to protect the secret by patent.95Where it is not patentable, the following are practice steps should be employed in ensuring the protection of confidential information and trade secrets.

i. Only few people in the organization should know the trade secret and they must know that it is confidential.

ii. Records going out of the organization should be marked as “Confidential” or “Top Secret” with a stamp or watermark.

iii. Computer works should be pass-worded to restrict electronic access.

iv. Storing records and specimens when not in use in location that are secured.

v. Ensuring all employed Staff sign Confidential Agreement with the employer. Such agreements binds the employee to non-disclosure of confidential information or trade secret even after leaving the employment for even years as may be agreed in the contract of employment.

vi. Ensuring the signing of confidentiality agreements with business partners whenever disclosing confidential information.

vii. Professional training and retraining of Staff on confidentiality.

viii. Visitors book should be kept by the organization to keep track of visitors and their purpose of visiting.

ix. General overhaul of the security architecture of the office by routinely changing keylocks especially when a Staff is no more under the service of the employer.

x. Destroying and shredding of discarded information.

xi. Restriction of document or part of building against visitors or Staff who are not allowed to access such document or part of the building.

xii. Employees should be subjected to searches before leaving the work environment.