Trade Secrets and Traditional Knowledge: Strengthening International Protection of Indigenous Innovation

Abstract

A rational trade secret regime could serve as a valuable first step in protecting indigenous innovation. However, to assure that such a regime does not simply lock away such innovation from the public but assures that it is used and valued on terms that respect the rights of indigenous holders, the full flexibilities mandated by present international standards for trade secret protection must be applied. These flexibilities include recognition of the unfair competition basis of trade secret protection internationally which in turn allows for ethically applied considerations of secrecy, commercial value, and diasporic ownership. Ultimately, trade secret protection, applied with the full flexibility required under its unfair competition basis under TRIPS, could provide the critical legal foundation for the use of indigenous innovation as a critical source for sustainable development. But to reach these goals, present models for Material Transfer Agreements need to be more fully developed to accord full protection to indigenous innovation and TK databases and registers need to be crafted to avoid improvident loss of critical trade secrets.

Keywords: traditional knowledge, indigenous peoples, trade secret, innovation, international, flexibilities

JEL Classification: 034, 014, 031, Z10