A Handbook of Contemporary Research
- Research Handbooks in Intellectual Property series
Edited by Rochelle C. Dreyfuss and Katherine J. Strandburg
Chapter 19: Trade Secrets and Traditional Knowledge: Strengthening International Protection of Indigenous Innovation
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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