A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Rochelle C. Dreyfuss and Katherine J. Strandburg
Rochelle C. Dreyfuss and Katherine J. Strandburg Surveys of the creative sector repeatedly demonstrate that innovators regard trade secrecy as one of their most important information management strategies. Surprisingly, however, there has been relatively little academic writing in this area. The reasons why are telling, for they shed light on the issues with which the chapters in this volume deal. The absence of a deep literature may, in fact, be overdetermined. Thus, one reason for the absence of a robust scholarship is that the legal landscape is difficult to evaluate. The major intellectual property regimes (patent, trademark and copyright law) are based on federal statutes, making both the legislation and case law easy to collect, survey, and categorize. But because trade secrecy is largely a creature of state law (and until recently, mostly state common law), it is less available as a target for doctrinal analysis. Nor is trade secrecy appealing to empiricists. After all, the hallmark of the legal strategy is secrecy. Thus there is little data with which to work: there are no registries of trade secrets and few available indicators of their economic significance. In contrast, the patent system gives economists and lawyers a vast trove of information to study. Even more importantly, trade secrecy lacks a central theoretical organizing principle. In a sense, trade secrecy functions as an umbrella covering a variety of distinct concerns. Promoting honest business practices is one clear theme. Other concerns involve the relationships between a firm and its employees, commercial partners,...