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23. It can be argued‑‑as Professor Weinrib does in "Information and Property" (1988), 38 U.T.L.J. 117‑‑that confidential information is property for the purposes of civil law. Indeed, it possesses many of the characteristics of other forms of property: for example, a trade secret, which is a particular kind of confidential information, can be sold, licensed or bequeathed, it can be the subject of a trust or passed to a trustee in bankruptcy. In the commercial field, there are reasons to grant some form of protection to the possessor of confidential information: it is the product of labour, skill and expenditure, and its unauthorized use would undermine productive efforts which ought to be encouraged. As the term "property" is simply a reference to the cluster of rights assigned to the owner, this protection could be given in the form of proprietary rights. The cases demonstrate that English and Canadian civil law protect confidential information. However, the legal basis for doing so has not been clearly established by the courts. Some cases have treated confidential information as property, and thus have entitled the owner to exclude others from the use thereof: Aas v. Benham, [1891] 2 Ch. 244 (C.A.); Exchange Telegraph Co. v. Gregory & Co., [1896] 1 Q.B. 147 (C.A.); Exchange Telegraph Co. v. Central News Ltd., [1897] 2 Ch. 48; Exchange Telegraph Co. v. Howard (1906), 22 T.L.R. 375 (Ch. Div.) On the other hand, the courts have recognized certain rights with respect to confidential information in the guise of an equitable obligation of good faith: Peter Pan Manufacturing Corp. v. Corsets Silhouette Ltd., [1963] 3 All E.R. 402 (Ch. Div.); Saltman Engineering Co. v. Campbell Engineering Co., [1963] 3 All E.R. 413n (C.A.); Argyll v. Argyll, [1965] 2 W.L.R. 790 (Ch. Div.); Pre‑Cam Exploration & Development Ltd. v. McTavish, [1966] S.C.R. 551; Seager v. Copydex Ltd., [1967] 2 All E.R. 415 (C.A.); Boardman v. Phipps, [1967] 2 A.C. 47 (H.L.); Fraser v. Evans, [1968] 3 W.L.R. 1172 (C.A.)
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