ABSTRACT
For two decades, discussions have been on-going in Geneva over intellectual property’s relationship to indigenous peoples’ traditional knowledge and traditional cultural expression. Part of those discussions have focused on requiring applicants for conventional IP rights, particularly patents, to disclose the use of genetic resources and associated traditional knowledge. Those negotiations concluded successfully in 2024 with the adoption of the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge.
The broader, more difficult issues at the World Intellectual Property Organization (WIPO) center on whether and how indigenous peoples can have IP or IP-like rights over their traditional knowledge (TK) and traditional cultural expression (TCE). Because most of this TK/TCE has been understood to be part of the public domain, the call for IP rights for TK/TCE is a call for a significant reordering of the global information eco-system. Hence, 20+ years of talks. But part of the puzzle can be solved in a way that both promotes greater justice for indigenous peoples and is workable for western intellectual property systems. Many indigenous and/or local communities are most concerned about the TK/TCE that they identify as sacred or as secret. Practices among communities vary tremendously, but these two categories often overlap.
In this paper, we propose that western legal systems could evolve relatively easily and painlessly to protect secret TK/TCE with trade secrecy and misappropriation laws. While national (and state) laws vary, protecting information with trade secrecy law typically requires that the information is not generally known beyond the natural or legal person who holds the information; that that person takes reasonable steps to keep the information from becoming generally known; and that the information has commercial value. The paper addresses how each of these requirements could be adjusted to encompass secret TK/TCE without disrupting the conventional operation of trade secrecy law. Not only is this evolution possible, but it comports with basic notions of justice and human dignity.
Hughes, Justin and Bagley, Margo A, Secret Traditions as Trade Secrets (April 4, 2025), Harvard International Law Journal, volume 66, forthcoming; Emory Public Law Research Paper No 25-4; Loyola Law School, Los Angeles Legal Studies Research Paper No 2025-11.
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