Trade secrets return control to Indigenous knowledge holders and remove barriers to protection.

While trade secret protection is not as "barrier"-like as patent protection, it can protect relatively secret traditional knowledge. Not only does trade secret law lack many of patent law's subject matter, temporal, monetary, and other constraints;140 it may also accommodate the concerns of those traditional knowledge holders who want to control particular uses of their knowledge, as well as those who are interested in obtaining a share of the profits from commercialization. 141

One point of clarification: as previously noted, the term traditional knowledge has been used to refer to a vast and varied body of information.42 It has been used, for example, to refer not only to knowledge possessed by specific indigenous and local communities. The term has also been used to describe knowledge that is indigenous to a particular region or country and is generally known by many segments of society-for example, certain aspects of Aryuvedic medicine. Trade secret law would not apply to such information. Toward the other end of the spectrum, however, traditional knowledge may be known within one particular indigenous or local group, or only by specific members of a particular group (e.g., healers), or, more commonly and complicatedly, by a discrete number of neighboring groups within a geographical area. It is this subset of traditional knowledge for which trade secret law has something to offer.

In the modem commercial context, trade secret rights generally arise in three kinds of interactions: (1) where there is a contractual agreement; (2) where, even in the absence of a contract, the parties' relationship or conduct leads to the inference that the information was disclosed in confidence and any use or disclosure beyond the boundaries of confidence is wrongful; and (3) where a party uses improper means to acquire the information (sometimes described as "competitive intelligence" cases). 14 3 Each of these situations is potentially relevant to traditional knowledge holders.

The Contractual Agreement Context In the contractual agreement context, imagine traditional knowledge holder T has nonpublic information to which company C (or perhaps a bioprospector or researcher acting on C's behalf) wants access. T agrees to give C access, but only in exchange for Ts explicit agreement to respect various restrictions on use and disclosure, as well as a royalty or percentage of future benefits from C's use of the information. Ts sharing of the secret information in this context-even with multiple firms-does not make the information "public," so long as T has exercised "reasonable" precautions to prevent unauthorized disclosure of the secret.'"

In addition, trade secret law incorporates certain default rules prohibiting C's retransfer of that information unless separate permission is negotiated.145 As Pamela Samuelson has observed in considering the application of trade secret rules to firms' use of personal data shared over the Internet:

The general rule of trade secrecy licensing is that if the licensor has provided data to another for a particular purpose, the data cannot be used for other purposes without obtaining permission for the new uses.... . . . The general default rule of trade secret licensing law is that license rights are nontransferable unless the licensor grants a right to sublicense. Sublicenses, if permitted, generally oblige the sublicensee to abide by the same terms as the license imposes on the now sublicensor.146

Similarly, traditional knowledge holders can bind any downstream recipients of the information to the same restrictions that the initial purchaser agreed to as a condition of sale. But while some local and indigenous groups have successfully negotiated contracts-often with the help of NGOs or national governments-others "lack basic contract negotiation, drafting and implementation skills."l 47 For this latter group, the contractual agreement context may be less relevant than the other two contexts in which trade secret rights arise.