'A Trade Secret Approach to Protecting Traditional Knowledge' by Deepa Varadarajan in (2011) 36(2)
Yale Journal of International Law comments that -
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.
The author goes on to state that -
The relationship between intellectual property law, secrecy, and disclosure has important consequences for the traditional knowledge debate. In the traditional knowledge context too, society as a whole benefits from the disclosure of commercially valuable information. If bark from a tree and ashaman’s knowledge of its special properties can cure ulcers, then society has an interest in encouraging the disclosure of this knowledge to other entities that can improve upon it and bring it to the larger public.
At least some anecdotal evidence suggests that traditional knowledge holders are willing to share otherwise secret information with outsiders for research and commercial purposes, so long as they are afforded a degree of control over subsequent uses of the knowledge and, in some cases, a portion of the benefit. For example, traditional healers from indigenous communities in Uganda reported to WIPO IGC field researchers that they would be “willing to collaborate with modern health practitioners and the pharmaceutical industry to share information,” but that “[p]rotective measures should be in place before [they] would be willing to collaborate with outsiders.”
Evidence also suggests that in the absence of protection, traditional knowledge holders are warier of sharing and, in some cases, will go to great lengths to erect walls around potentially valuable information. A number of traditional knowledge holders interviewed during the course of the WIPO IGC’s nine fact-finding missions expressed an unwillingness to share their traditional knowledge out of fear that they would not have any control over the way the information was used or derive any economic benefits. Members of the Kuna community in Panama, for example, expressed their aversion toward collaborating with ethnobotanists or other scientists:
Expeditions by [these researchers] have started to be regarded with suspicion because community members are not involved in, nor informed of, the subsequent use of the information and biological material supplied by them. It is believed that if new products were to be developed or new scientific publications issued on the basis of that information, the communities of origin would probably never be informed and would in all likelihood not participate in any economic benefits deriving therefrom.
Some local and indigenous groups have taken more drastic steps to prevent the flow of information to outsiders. In 2000, a Wapishana indigenous community in the Guyanese Amazon banned all “researchers” from entering their villages. This community had previously shared valuable medicinal information with a British chemist about the healing powers of certain plants - Tipir, the nut of the Greenheart tree, and Cunani, a bush plant - used since ancient times. The chemist subsequently obtained U.S. and European patents based on the active ingredients in these plants, which he claimed were useful in treating malaria and preventing heart blockages. The community viewed the incident as a betrayal of their sharing. In response, they have banned the research efforts of all outsiders - to the potential detriment of society. Thus, even if an initial transmission of information - like the chemist’s initial acquisition of knowledge - can occur in the absence of traditional knowledge protection, the erosion of trust from such a one-sided transaction can pollute future transmissions.
To be sure, formal law’s role in lessening distrust may operate differently in the commercial context than in the traditional knowledge context, depending on the level of social or cultural significance that such knowledge may have for a particular community or the community’s level of wariness toward outsiders.
Information sharing in the traditional knowledge context may require greater indicia of respect or trustworthiness than the arms-length commercial licensing transactions that govern information sharing for modern firms. As Rosemary Coombe writes, “Acquiring traditional knowledge ... may require rather different forms of social relationship that involve trust [and] collaboration,” as well as a showing of “respect that our intellectual property laws ... do little to encourage.”
Here, too, a fair amount of variation is likely to exist among and between groups. But what is striking about the data collected by the WIPO IGC is that a number of traditional knowledge holders have voiced a greater willingness to share knowledge and collaborate upon receiving internationally recognized IP rights. And experimental projects such as Ecociencia’s closed-access registry of botanical knowledge suggest trade secret law’s potential for eliciting hitherto unknown and undisclosed traditional knowledge and encouraging its categorization, classification, and storage in forms that can be more easily shared with outsiders.
Even outside of the traditional knowledge context, the effects of formal law on trust and behavior are difficult to measure in any absolute terms; its role is often “modest but [nonetheless] important.” As Dagan and Heller observe:
The myriad details of the law do not matter individually, but jointly they produce practices and experiences that in turn generate social expectations. For law to affect behavior, we do not assume widespread knowledge of any doctrinal detail, only that people generally believe that if things turn ugly, the law will serve as one form of social organization that protects them against extreme abuse and exploitation.
Thus, while the evidence may be limited, there are both logical and evidentiary reasons to suggest that without legal protection, traditional knowledge holders would disclose less and take more assertive steps to prevent the flow of information to outsiders. This is problematic for a number of reasons, including that it will “slow the process of commercialization and improvement of” relatively secret knowledge and ultimately interfere with “both the invention and disclosure functions of IP law.” For example, researchers might be prevented from entering these communities at all, or even if they did enter, traditional knowledge holders might be unwilling to share information that could lead to the next antimalarial or heart medicine.
The role of intellectual property law in facilitating trust and cooperation in the traditional knowledge context merits additional research and investigation. Trade secret law - and more specifically, a clarification of TRIPS Article 39’s commercial value requirement and a richer understanding of the intersection of reasonable secrecy efforts and customary law in the traditional knowledge context - may, in the end, comprise only part of a broader package of useful policy reforms. My purpose here is not to suggest that trade secret law is the only desirable path. Rather, I seek to illuminate the ways in which trade secret law can protect a subset of traditional knowledge and help frame the international discussion in a more fruitful way - a way that emphasizes important connections between traditional knowledge protection and the broader purposes of intellectual property, instead of merely its divisions.
Varadarajan concludes that -
For over a decade, the issue of traditional knowledge protection has posed an intractable problem for advocates, scholars, and developing country governments. Traditional knowledge advocates seek greater recognition and rights within international intellectual property law—particularly, the muscular TRIPS framework. But thus far, they have failed to effectively link their arguments to the IP framework or the broader purposes of existing IP regimes. Instead, traditional knowledge advocates have operated primarily within “human rights” and “preservation” approaches. These approaches appear more hospitable to traditional knowledge advocates than the conventional IP approach, especially given the latter’s focus on ex ante “incentives to create.” But the conventional IP approach need not be so narrow.
I have argued that trade secret law is useful to the traditional knowledge debate in two underexamined ways. First, a trade secret approach to traditional knowledge protection is a practical initial step forward in the international impasse. Trade secret law can be a useful legal vehicle for traditional knowledge holders when dealing with outsiders’ improper acquisition, disclosure, and use of relatively secret information. Admittedly, many traditional knowledge holders may view trade secret law as too limited - too fragile - because it does not apply to publicly available, reverse-engineered, or independently developed information. While I am sympathetic to such concerns, this Article takes a decidedly pragmatic approach; more idealized approaches that significantly undercut the purposes of existing intellectual property regimes are less likely to be accepted within the framework of international IP law and enforced by the international community. Absent a model for protection that incorporates some objective limits and preserves access to generally available information, “an international approach is likely to be a more abstract gesture” than a reality.
In addition to outlining trade secret law’s practical possibilities in the traditional knowledge arena, I have argued that trade secret law can serve as a normative guide to help ground an IP theory of traditional knowledge protection. One prominent justification for trade secret law’s inclusion in the IP law family is that it serves the “disclosure” purposes of IP law by reducing holders’ over-investment in secrecy, lessening distrust, and encouraging the disclosure of valuable information to those who can improve or make more productive use of it. Similarly, traditional knowledge protection may lessen the distrust of indigenous and local communities toward outsiders and encourage their disclosure of valuable information in socially beneficial ways.
