The Law and Theory of Trade Secrecy
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The Law and Theory of Trade Secrecy

A Handbook of Contemporary Research

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.
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Chapter 17: Trade Secrets and Information Access in Environmental Law

Mary L. Lyndon


Mary L. Lyndon* I. INTRODUCTION Businesses often assert a privilege to withhold information that would identify their own effects on human health and the environment. Access to data (including chemical identity, volume and locations of discharges, and data on health and ecological effects) is crucial to environmental, health and safety (EHS) management. Secrecy undermines risk management, yet proprietary interests often prevail in direct conflicts over data. In this chapter I outline a case for a rule that would favor access over secrecy, namely when the data describes an environmental impact or exposure.1 The petrochemical industry provides a good context for examining the issues. On one hand, the ingredients of a chemical formula are a classic trade secret, though patents may also be a good fit. On the other, many trillions of pounds of chemical substances are distributed each year throughout the globe, so that exposure to them is widespread.2 Of the approximately 75,000 chemicals in use, only a relatively small number have been well characterized for potential toxicity, though many are thought to pose health risks.3 Given these facts, should the identity of chemicals or data on their effects be covered by trade secrecy or its progeny, ‘confidential business information’ (CBI)? Professor of Law, St. John’s University. I use ‘EHS’ and ‘environmental’ as synonyms, but my focus will be on the environment. Occupational health and safety and consumer product and food and drug management face similar problems in managing and distributing information. David Levine has analysed related issues in...

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