What leaves with the employee? Confidential information and IP risks post-employment

Nora Ademi
Qoku & Partners, in cooperation with Karanovic & Partners, Skopje
nora.ademi@karanovicpartners.com

Bojana Paneva
Qoku & Partners, in cooperation with Karanovic & Partners, Skopje
bojana.paneva@karanovicpartners.com

Ljupka Noveska Andonova
Qoku & Partners, in cooperation with Karanovic & Partners, Skopje
ljupka.noveska@karanovicpartners.com

Trade secret protection and confidentiality in employment relationships

For many businesses, information and know-how represent some of their most valuable assets, whether in the form of confidential formulas, customer and business contact lists or specialised IT systems and data. Given the value of such information, employers often take significant steps to safeguard such assets. At the same time, some businesses adopt a less rigorous approach to protecting confidential information, at least until an employee misuses or discloses it.

The protection of trade secrets is specifically regulated in North Macedonia. Employees must not use confidential information for their personal benefit or disclose it to third parties where the employer has designated the information as confidential through an internal act, or where the information was entrusted to the employee or obtained during the course of their employment. Employees are liable for any breach where they knew, or reasonably should have known, that the information in question was confidential.^[1]

The obligation to maintain confidentiality is also reflected in Article 6(1) of Directive 2002/14/EC, which has been transposed into the Labour Law of North Macedonia (2005). Under these provisions, employees with access to materials, information or classified data must preserve their confidentiality. Similarly, employee representatives and engaged experts must not disclose information of commercial importance that the employer has expressly designated as confidential. This confidentiality obligation continues to apply even after the termination of their employment or the expiry of the representative’s mandate.^[2]

In practice, it is common for employment agreements to include confidentiality provisions. Where such provisions expressly classify the unauthorised disclosure or use of confidential information as a contractual breach, this strengthens the employer’s position, as the breach is no longer merely a matter of general employment misconduct, but is also a breach of contract. However, a failure to observe procedural requirements can render disciplinary or termination decisions invalid.

Employee intellectual property rights in North Macedonia

Few legal questions carry greater practical and commercial importance in the employment context than the ownership of intellectual creations developed during an employment relationship. In North Macedonia, the Law on Copyright and Related Rights (2010) primarily governs this issue, distinguishing between the author’s economic rights and moral rights.

As a general rule, when an employee creates a copyright-protected work within the scope of their employment, the employer acquires the economic rights for a period of five years from the date of creation, unless a collective agreement or employment agreement provides otherwise.^[3] Economic rights, including the rights of reproduction, distribution, public communication and adaptation, may therefore be transferred contractually.

Moral rights, however, remain with the author and cannot be transferred or waived.^[4] These rights include the right to be recognised as the author, the right of first publication, the right to protect the integrity of the work and the right of withdrawal. Macedonian law treats these rights as mandatory and does not permit any contractual derogations.

A separate regime applies to computer programs and software. When an employee creates a computer program in the course of performing their employment duties or following the employer’s instructions, the employer exclusively exercises all of the economic rights in that program, unless the employment agreement provides otherwise. Unlike the general rule applicable to other copyright works, the five-year limitation does not apply to computer programs, unless the parties expressly agree otherwise.

With respect to other intellectual property rights, such as trademarks, patents and industrial designs, employers and employees typically regulate ownership and the transfer of rights contractually through employment agreements. Where the applicable law does not permit a direct or unrestricted transfer, the parties usually provide for assignment to the employer to the fullest extent permitted by law.

North Macedonia, as a candidate country for European Union membership, has been systematically aligning its intellectual property legislation with the EU acquis, meaning its legal framework increasingly mirrors European standards. 

Post-employment risks and protective measures in North Macedonia

Post-termination risks in North Macedonia most commonly relate to the misuse of confidential information, trade secrets, client relationships and intellectual property developed during an employment relationship. These risks are particularly acute in relation to employees who had access to commercially sensitive information, software, technical know-how, customer databases, pricing structures or strategic business data.

Under Macedonian law, employees remain liable for the unauthorised use or disclosure of trade secrets obtained during employment where the information was designated as confidential by the employer, entrusted to the employee or acquired during the course of their employment. The confidentiality obligation may continue after the termination of an employee’s employment, particularly where the information qualifies as a trade secret or where contractual confidentiality obligations apply. In practice, employers in North Macedonia often include confidentiality and intellectual property clauses in employment agreements, in addition to internal policies and rulebooks governing confidential information and trade secret protection.

From an intellectual property perspective, disputes may arise regarding the ownership and use of works, software, source code, inventions or other materials created during an employment relationship. Although Macedonian law grants employers economic rights over works created within the scope of an employment relationship, parties typically regulate ownership, assignment and post-termination use contractually to reduce uncertainty and mitigate enforcement risks.

Employers also frequently seek contractual protection through non-compete clauses. However, the enforceability of post-termination non-compete restrictions depends on compliance with mandatory labour law requirements, including limitations on the duration, scope and compensation pertaining to such clauses.

As North Macedonia continues to align its legal framework with EU standards, businesses are increasingly adopting more robust contractual and compliance mechanisms to mitigate post-termination risks and strengthen the protection of confidential information and intellectual property assets. The key to minimising post-termination risk lies in drafting such clauses with specificity, rather than relying on broad wording commonly used in practice.

Conclusion

In North Macedonia, employment and intellectual property law establish a clear foundational framework for protecting employers’ confidential information and intellectual property during and after an employment relationship. However, the actual level of protection depends largely on how these issues are addressed in employment agreements and internal company rules.

In particular, employment agreements and internal acts play a decisive role in defining confidential information, securing the transfer of economic rights in intellectual property and extending protection beyond the termination of an employment relationship, including through confidentiality undertakings and restrictive covenants, where legally permissible. Given the limitations of statutory protection, especially in relation to the scope, duration and enforceability of post-termination restrictions, employers must rely on carefully drafted contractual mechanisms to ensure legal certainty and effective enforcement.