Table of Contents

The Law and Theory of Trade Secrecy

The Law and Theory of Trade Secrecy

A Handbook of Contemporary Research

Research Handbooks in Intellectual Property series

Edited by Rochelle C. Dreyfuss and Katherine J. Strandburg

This timely Handbook marks a major shift in innovation studies, moving the focus of attention from the standard intellectual property regimes of copyright, patent, and trademark, to an exploration of trade secrecy and the laws governing know-how, tacit knowledge, and confidential relationships.

Chapter 19: Trade Secrets and Traditional Knowledge: Strengthening International Protection of Indigenous Innovation

Doris Estelle Long

Subjects: law - academic, intellectual property law


Doris Estelle Long* INTRODUCTION At the turn of the last century, a missionary, anthropologist and long-time scholar of the practices of the Hopi Indians, Reverend Heinrich (Henry) R. Voth, was allowed to witness and photograph sacred ceremonial dances as part of his study of the Hopi religion and culture. Such photography remains generally forbidden even today. Disputes over the scope of the oral understanding regarding the use of the photographs taken, including in particular Reverend Voth’s right to publish them, and the extent to which the Hopis actually agreed to have such practices recorded by an outsider (or, more specifically, the extent to which the Hopis had the practical power to refuse Voth’s request), remain ongoing. What remains undisputed is that the ceremonies photographed, described and published by Voth are considered sacred, and that the knowledge regarding the conduct of such ceremonies remains closely held among certain members of the tribe. Commercialization of such ceremonies is prohibited.1 The history of indigenous groups and the protection of their secret practices is filled with such stories of misunderstandings, mistaken trust and incomplete legal protection. Such misunderstandings have the potential to expand exponentially as the commercial value of indigenous-held knowledge is increasingly recognized in such diverse areas as biogenetics, agriculture, sustainable development and environmental protection (among * Professor of Law and Chair, Intellectual Property, Information Technology and Privacy Group, the John Marshall Law School, Chicago. The author would like to thank Allison Schneider and Youngjoo Ahn for their research assistance on portions of this...

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