A Trade Secret Approach to Protecting Traditional Knowledge

The skills and innovations of indigenous and local communities - their so-called “traditional knowledge” - go largely unrecognized by intellectual property law. Meanwhile, patent and copyright laws reward the innovative and creative contributions of individuals and firms that freely use traditional knowledge as inputs for a variety of products. The perceived inequity has inspired the ire of indigenous groups, advocates and developing country governments, led to impassioned accusations of “biopiracy” and “First-World imperialism,” and triggered various reform efforts. Despite a decade of trying, however, traditional knowledge holders and their advocates still seek meaningful recognition and rights within the international IP framework. This Article argues that the doctrinal and normative divide between traditional knowledge and intellectual property law has been overemphasized and that trade secret law can potentially narrow it. I argue that the application of trade secret law to protect traditional knowledge - a trade secret approach - is a practical path forward in the current international impasse. Moreover, I argue that the underlying justifications for trade secret law offer a useful normative guide for theorizing traditional knowledge protection and linking it to the broader purposes of IP law. Like trade secret law generally, the protection of traditional knowledge can ultimately serve the broader purposes of IP law by reducing holders’ distrust in negotiating with outsiders and by encouraging the disclosure of potentially valuable secret information to more productive users and improvers