Document Type

Article

Publication Date

2011

Abstract

This Article argues that the doctrinal and normative divide between traditional knowledge protection and intellectual property law has been overemphasized, and that trade secret law can help narrow it. First, in terms of doctrinal fit, trade secret doctrine offers a viable model for protecting a subset of traditional knowledge that is not already publicly available. Broadly speaking, trade secret law imposes liability for the wrongful acquisition, use, or disclosure of valuable information that is the subject of reasonable secrecy efforts. Second, in addition to its practical import, the underlying justifications of trade secret law offer a useful normative guide for theorizing traditional knowledge protection and linking it to the broader purposes of intellectual property law.

The Article unfolds in four parts. Part II sets the stage by defining traditional knowledge and describing the cultural and political shifts that led to its emergence as a subject of international controversy. Part III considers the three predominant approaches commentators and scholars have taken to understand and rationalize traditional knowledge protection—what is loosely termed the preservation approach, the human rights approach, and the conventional IP approach. Parts IV and V revisit the conventional IP approach and expand upon it by examining trade secret doctrine in depth. Part IV assesses the merits and limitations of trade secret law for the protection of traditional knowledge. And Part V considers how the "disclosure" justification of trade secret law-and intellectual property law more broadly-can inform a more compelling IP theory for traditional knowledge protection. Part VI concludes.

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