Trade secrets are the best form of protection for indigenous knowledge.

Trade secret law is possibly the best form of protection for the indigenous knowledge amongst the prevailing regimes of intellectual property rights. A trade secret can consist of any pattern, device, compilation, method, technique, or process that gives a competitive advantage.87 In corporate terms, even items or data such as customer lists, financial information, recipes for food or beverage products, and technical subject matter of a patent, marketing procedures, or a professional questionnaire can be protected by trade secrets. For example, trade secrets can vest an implied duty on a photographer not to sell or exhibit copies of a photograph without the consent of the photographed.88 Trade secrets are also the best form of intellectual property rights for protecting any kind of undisclosed information. The object is to lawfully prevent information (which is a secret having commercial value) within the control of a person from being disclosed to, acquired by, or used by others without consent, in a manner contrary to honest commercial practices.89

The first step towards trade secret protection of the knowledge of indigenous people is the realization of its value by the holders. The awareness of the rights and long term benefits that will be gained if protected as a trade secret is also essential. Normally, knowledge limited to and secured by an identifiable number of people is subject to trade secret protection provided there is a clear intention to treat it as a secret. Corporate trade secrets have been protected by well-drafted agreements with specific employees in a department, or the entire company may have knowledge of the confidential information. There are instances where indigenous people have also tried to adopt the same strategy. For example, a small tribe in Peru adopted this methodology to protect its property from the California based Shaman Pharmaceuticals Inc. Shaman is a company based in San Francisco. It focuses on isolating bioactive compounds from tropical plants having a history of medicinal use. The company’s research team collects information on the use of plant medicines to treat various illnesses. Shaman, as a part of its program, approached a particular tribe in Peru. The tribe or community demanded that they enter into an agreement with the company to get short and long-term benefits. The terms in the agreement addresses reciprocity from the company to the tribe in three stages. The short-term reciprocity addresses immediate needs of the community, like public health, forest conservation, and medical care. The medium-term reciprocity consists of benefits not immediately apparent, but nonetheless provides benefits before profit sharing might. These include providing equipment, books, and other resources. The long-term reciprocity involves returning a portion of the profits to the indigenous communities once a commercial product is realized.90 However, the company does not share the patents or part of the proceeds from the patents with the indigenous people who provided the initial material. Long-term benefits will accrue in absolute terms only from intellectual property rights and not from the facilities that may be provided to the tribes. Nevertheless this is a good approach involved in using trade secret to protect indigenous knowledge.9

Though for intellectual balance, despite the beautiful arguments in favour of protection of Indigenous or Traditional Knowledge using Trade secret, Meghana RaoRane argued against it as a viable option among the existing IPRs regimes because of its commercial basis. He claimed that: Trade secret law, proposed as a solution for protecting Traditional Knowledge or Traditional Cultural Expressions, attempts to protect valuable commercial information that has been conveyed in confidence.92 A trade secret is a piece of information that has commercial value, is necessary to carry out the business of the organization, and is conveyed to employees or others in confidence.93 The owner of the trade secret is required to have made reasonable efforts to protect it.94 However, trade secrets may be protected indefinitely.95 Despite its seemingly expansive range of protection, trade secret law cannot satisfactorily protect Traditional Knowledge of indigenous peoples. At first, this body of law may be considered useful to protect sacred or secret Traditional Knowledge.96 However, it requires that the information protected be of a commercial nature, which is not always the case with Traditional Knowledge. Moreover, it only protects information so long as it is not already public, and many Traditional Knowledge do not meet this criterion.97 Finally, it provides remedies only once the secret has been disclosed. Traditional Knowledge is secret and sacred and their very disclosure to the uninitiated persons violates their sanctity.98 Therefore, providing a remedy after the expression has been disclosed and the damage done does not satisfactorily protect the Traditional Knowledge.

12. Arguments of Trade Secrets, and the UN Convention on Biodiversity as Viable means of Protecting Traditional knowledge

Protection as a trade secret is cheaper, quicker, and easier to implement than a patent. A trade secret can also be maintained perpetually, unlike other forms of intellectual property. The legal requirements for proving that a trade secret exists are more flexible than that for obtaining other forms of intellectual property like a patent. Information not susceptible to patent or copyright protection can be protected under trade secrets.100 Infringement like using information without permission of the community can be effectively prevented by suing for misappropriation of trade secrets, benefiting the community.101 There is also an additional benefit in deciding to protect the traditional knowledge as a trade secret. If traditional knowledge is a trade secret, the holders will retain the right to decide whether or not to disclose the information. However, the Convention on Biodiversity (CBD), 1992102 mandates sharing of genetic resources for the benefit of general good subject to prior informed consent. It will be interesting to see whether the rights under trade secret law will prevail over the obligations under the CBD. On the other hand, the UN Draft Declaration on the Rights of the Indigenous People provides for the right to protect cultural property. Under the prevailing intellectual property regime, an inventor cannot be forced to disclose his invention under patent law, nor can an author be forced to publish his work under copyright law. Applying the same analogy, the indigenous people must also be given the right to keep their knowledge a secret. It will be interesting to see whether the rights of trade secrets and those detailed in the UN Declaration must prevail over the CBD.103 Th e 2007 United Nations Declaration on the Rights of Indigenous Peoples104 explicitly addresses these as urgent and legitimate issues in Articles 11, 12 and 31. Article 31 states: Indigenous people have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control and protect and develop their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions.